University of Kansas Law Review
Under a legal process known as civil asset forfeiture, state and federal laws allow law enforcement officials and the government to seize assets from individuals who are not charged with a crime if the property is suspected of being involved in criminal activity. This is true even if the owner of the property is not charged with the underlying crime. Indeed, in 2014, The Washington Post analyzed 400 cases in seventeen states that were examples of civil forfeiture during traffic stops. Police stopped motorists under the pretext of a minor traffic infraction, analyzed the intentions of motorists by assessing nervousness, and requested permission to search the vehicle without a warrant. In most cases, officers did not even make an arrest.
However, that same study found that between September 11, 2001 and September 2014, the Department of Justice's (DOJ's) equitable sharing program, which allows local law enforcement to share in the proceeds of property seized through civil forfeiture, "was responsible for nearly 62,000 seizures of cash without warrants or criminal indictments filed against the owners. Of the $2.5 billion forfeited as a result, state and local agencies received $1.7 billion and federal agencies received $800 million."
As this Article will show, civil forfeiture disputes regarding cash are some of the most difficult to resolve due to the psychological and structural nature of these disputes. However, as these disputes arise fairly frequently, tools are needed for judges and the judicial system as a whole to resolve them. While legislative action could help resolve these disputes by changing the legal framework within which they occur, until that time, judges are tasked with resolving civil forfeiture actions.
Rishi Batra, Resolving Civil Forfeiture Disputes, 66 U. Kan. L. Rev. 399 (2017).