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Don’t Steal; The Government Hates Competition: The Problem with Civil Asset Forfeiture

March 22, 2016
By Daniel Y. Rothschild and Walter E. Block

This paper, written by Mercatus Center at George Mason University executive director Daniel Y. Rothschild and Loloya University economics professor Walter E. Block, examines how civil asset forfeiture is used by government police to maximize resources.

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This paper, written by Mercatus Center at George Mason University executive director Daniel Y. Rothschild and Loloya University economics professor Walter E. Block, examines how civil asset forfeiture is used by government police to maximize resources, responding rationally to outside pressures.

Criminal forfeiture differs significantly from civil forfeiture, each with different implications for individual rights, Rothschild and Block write.

“There are two types of forfeiture laws,” Rothschild and Block wrote. “Criminal forfeiture requires a person charged with committing a crime to give up property used to commit the crime or obtained in the act. It is known as an in personam crime, which means that the person is considered guilty of breaking the law. Civil forfeitures, by contrast, are in rem, which means that the object itself is considered guilty of committing a crime. Criminal forfeitures require higher standards of proof than civil forfeitures, since only humans have rights and objects do not. The Constitution applies to people only, which means that for criminal forfeiture, people receive constitutional protections; they cannot have their assets seized until and unless they are actually found guilty of a law violation. Criminal forfeiture requires that a person who is accused of committing a crime has a right to a trial. He or she must be found guilty beyond a reasonable doubt. It is up to the prosecutor to prove guilt, and only after the accused is proven guilty may the assets that were involved in the criminal act be seized.”

Opposition to forfeiture reform benefits the government and harms the people, Rothschild and Block write.

“The gendarmes lobby to weaken any changes to the law that would decrease the amount of assets earmarked for their department,” Rothschild and Block wrote. “Instead of reducing crime, forfeiture increases crimes that have actual victims, since police resources are being directed toward victimless drug offenses instead. Violent crimes increase as the risk of being caught goes down. The solution we propose is a radical one. Any alternatives and attempts at a compromise have been shown to fail. We suggest not reform, but a repeal of forfeiture laws. Equitable sharing must be ended. Objects do not commit crimes: people do. Civil forfeiture has not taken the profit out of crime; rather, it places profit in crime and gives the real criminals—the police—legal immunity. Civil forfeiture reveals the hypocrisy of the state for all to see, and it is not a pretty sight.”