Skip Navigation

"Shiver Me Timbers!" Civil Asset Forfeiture: Crime Deterrent or Incentive for the Government to Pillage and Plunder Property?

August 1, 2010
By Kasey L. Higgins

This paper, written by Phoenix School of Law scholar Kasey L. Higgins, examines how civil in rem forfeiture affects the property rights of people and creates perverse incentives for law enforcement agencies.

mallet and scale

This paper, written by Phoenix School of Law scholar Kasey L. Higgins, examines how civil in rem forfeiture affects the property rights of people and creates perverse incentives for law enforcement agencies.

The history of civil asset forfeiture is tied to maritime law and the swashbuckling age of piracy, Higgins writes.

“Asset forfeiture dates back to biblical times, but it was first used in the United States to combat piracy on the high seas,” Higgins wrote. “Admiralty law provided for the confiscating of vessels accused of committing acts of piracy that ultimately interfered with United States commerce. Further, the U.S. applied forfeiture laws against ships that violated customs regulations and against ships carrying slaves. Over time, asset forfeiture laws moved from the seas to dry land, reigning over cases involving alcohol taxes, prohibition, firearms, and recently the drug war. Throughout the country, law enforcement agents have authority to seize property. In some cases the seizure is based solely on probable cause, and the owner must fight to have it returned, even if there is no criminal conviction.”

Civil asset forfeiture was once used to fight pirates but it has turned police agencies into pirates, Higgins writes.

“While asset forfeiture is warranted in some instances, specifically to deter crime, it has the potential to ultimately create greedy pirates in law enforcement agents,” Higgins writes. “Metaphorically speaking, asset forfeiture enables law enforcement agents to sail the ‘seas’ searching for profits—booty. Essentially, the asset forfeiture laws have turned innocent private property owners into damsels in distress, in extreme need to be rescued from the tyranny of greed-motivated law enforcement.”