In 2012, the United States Department of Justice attempted to seize the Motel Caswell — a family-owned roadside motel in Tewksbury, Massachusetts, worth approximately $1.5 million — because a handful of guests over a fourteen-year period had been arrested for drug crimes on the property. The motel's owners, Russ and Pat Caswell, were not accused of any crime. They had not sold drugs. They had cooperated with police when they identified suspicious activity. They had followed every legal requirement. None of that mattered. The DOJ, in partnership with the local police department which stood to receive 80 percent of the proceeds if the forfeiture succeeded, maintained that the motel itself was "substantially connected" to drug trafficking and therefore subject to civil forfeiture.

After three years of legal battle, a federal judge ruled that the government had failed to prove its case. The Caswells kept their motel. But they spent years of their lives and hundreds of thousands of dollars in legal fees defending property they never should have had to defend — property that was targeted, their lawyer argued, precisely because it was valuable and the government wanted it. Judge Douglas Woodlock's ruling in United States v. 434 Main Street, Tewksbury, Massachusetts was a judicial rebuke to a legal doctrine that has become one of the most egregious abuses of government power in American history: civil asset forfeiture.

Since 2000, federal, state, and local governments have seized more than $68 billion in assets through civil asset forfeiture. That number requires processing: sixty-eight billion dollars taken from Americans without criminal conviction, in many cases without criminal charges, and in a significant number of cases from people who have committed no crime at all. The property is seized first. The owner must then fight to get it back — a reversal of every due process principle the Founders embedded in the Constitution. The government keeps a substantial portion of what it seizes regardless of whether the owner is ever convicted. In many jurisdictions, the seizing law enforcement agency keeps the money it seizes, creating a direct financial incentive for seizures that has nothing to do with public safety and everything to do with revenue generation.

The Legal Fiction That Made This Possible

Civil asset forfeiture rests on one of the most Baroque legal fictions in American law: the property itself is guilty. In a civil forfeiture proceeding, the case caption reads "United States v. $45,000 in U.S. Currency" or "State of Texas v. One 2015 Ford F-150." The money or the truck is the defendant. The human owner is merely a "claimant" — a person who asserts an interest in the defendant property. The legal action is in rem (against the thing) rather than in personam (against the person). This distinction is not mere formality; it is the mechanism through which the entire due process framework of the American criminal justice system is bypassed.

Because the proceeding is civil, not criminal, there is no right to a court-appointed attorney. There is no right to a jury trial in most jurisdictions. There is no "beyond reasonable doubt" standard — in most states, the government need only show "probable cause" that the property is connected to criminal activity, a standard lower than what is required to search your house. And in most states, once the government shows probable cause, the burden shifts to the owner to prove by a preponderance of the evidence that the property is "innocent" — that it is not connected to criminal activity. You must prove your money didn't commit a crime.

This is not a feature that crept into American law gradually through judicial interpretation. It is a design choice that Congress and state legislatures made, deliberately, when they expanded civil forfeiture in the 1980s as a tool of the War on Drugs. The Comprehensive Forfeiture Act of 1984 dramatically expanded the federal civil forfeiture program, lowered the legal standard for seizure, and — crucially — allowed the seizing law enforcement agency to keep the proceeds. Before 1984, forfeited assets went to the general treasury. After 1984, they went to the law enforcement budget. The perverse incentive was created by statute and has never been fully reformed.

Jefferson on Property: The Fundamental Right

"The true foundation of republican government is the equal right of every citizen, in his person and property, and in their management." — Thomas Jefferson, letter to Samuel Kercheval, 1816

Thomas Jefferson regarded property rights as foundational to republican liberty — not because he fetishized property, but because he understood that the ability of the government to seize a person's property without due process was the same ability that made tyrants possible. A government that can take your house, your car, your savings without convicting you of anything is a government with near-absolute power over your life. Jefferson's constitutional framework, from the Virginia Declaration of Rights through the Fifth Amendment, was designed specifically to prevent this.

The Fifth Amendment is unambiguous: "No person shall...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Civil asset forfeiture violates this provision in spirit, if not always in judicial interpretation. The Supreme Court has held, in case after case, that civil forfeiture is a regulatory sanction rather than a criminal punishment, and therefore does not trigger the full protections of the Fifth and Fourteenth Amendments. But this doctrinal distinction cannot survive honest scrutiny: when the government seizes your life savings without convicting you of anything, the distinction between "regulatory sanction" and "deprivation of property without due process" is a legal fiction, not a principled constitutional line.

"The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence." — John Adams, A Defense of the Constitutions of Government of the United States of America, 1787

Adams understood that the sanctity of property is not about protecting the wealthy. It is about protecting everyone from the arbitrary exercise of state power. When the government can seize property without conviction, the poor are not protected by their lack of wealth — they are targeted by it. The people who fight civil forfeiture successfully are people who can afford lawyers. The people who lose their property and walk away are those who cannot.

The Equitable Sharing Program: How DOJ Helps Local Police Bypass State Law

When states began enacting civil asset forfeiture reforms in the 2010s — tightening standards, redirecting proceeds to general funds, requiring criminal conviction before forfeiture — the federal government created an escape hatch. The DOJ's Equitable Sharing Program allows state and local law enforcement to "adopt" seizures under federal law, which triggers federal civil forfeiture procedures (which are typically more permissive than reformed state standards) and then returns up to 80 percent of the proceeds to the local agency.

This is not a side effect of the program. It is the program's central feature. Equitable sharing was specifically designed to allow local agencies to choose the most favorable legal standard — whichever is most permissive, federal or state — for any given seizure. The explicit purpose is to allow local law enforcement to bypass stricter state civil forfeiture laws. In New Mexico, after the state abolished civil asset forfeiture in 2015 — one of the strongest state-level reforms in the country — state and local agencies used the Equitable Sharing Program to continue conducting civil forfeitures under federal law, capturing property through federal procedures that the state legislature had specifically prohibited under state law.

The Equitable Sharing Program disbursed approximately $3.8 billion to state and local agencies between 2000 and 2013 alone. The program was briefly suspended by Attorney General Eric Holder in 2015 — a moment of reform that was reversed almost immediately by the Trump administration in 2017, when Attorney General Jeff Sessions restored the program in full and publicly encouraged law enforcement agencies to use it aggressively. The financial incentives are simply too powerful: local agencies that participate in equitable sharing can fund departmental equipment, training, and operating expenses off-budget, outside the normal appropriations process that subjects law enforcement spending to democratic oversight.

The Sourovelis Family: Government Seizes a Home Over One Son's Drug Deal

Christos and Markela Sourovelis owned a home in Philadelphia that they had lived in for years. Their son Leon, a young adult, was arrested in March 2014 for selling $40 worth of heroin. The Sourovelis parents were not charged. The city of Philadelphia — which operates one of the most aggressive civil asset forfeiture programs in America — seized their home. They were given three hours to leave. They were evicted from their own house because their son had committed a drug crime on or near the property.

Philadelphia's forfeiture program, documented in a devastating 2015 report by the ACLU of Pennsylvania called "Guilty by Association," targeted homes, cars, and cash from residents who were not accused of any crime themselves. The city's District Attorney's Office was running what the report described as a "shadow budget" — supplementing its operating expenses with forfeiture proceeds in ways that were not subject to normal city budget appropriations. Individual prosecutors had incentives to pursue forfeitures because their office benefited financially from the proceeds. The Sourovelis family's case became a class action lawsuit, Connor v. City of Philadelphia, which eventually produced modest reforms. But the underlying program continued.

The Philadelphia case is not exceptional. The Institute for Justice, which has done more to document and litigate against civil asset forfeiture than any other legal organization in America, has documented hundreds of similar cases: a man whose car was seized because a passenger had drugs; a family whose house was taken because their teenage children had sold marijuana out of it; a small business owner whose entire operating account was seized because the government noticed a pattern of cash deposits under $10,000 (a pattern known as "structuring," which is itself a crime, but one for which the business owner was never charged). The victims of civil asset forfeiture span every demographic and every region, but they share a common characteristic: they are not wealthy enough to fight back effectively.

The "Policing for Profit" Revenue Model

The Institute for Justice's "Policing for Profit" report, which has been updated periodically since its first edition in 2010, grades every state on its civil asset forfeiture laws and documents the revenue flows from forfeiture to law enforcement. The picture is consistent: in states where law enforcement keeps a high percentage of forfeiture proceeds, forfeitures are higher. In states that redirected proceeds to general revenue or schools, forfeitures dropped — not because crime dropped, but because the financial incentive was removed.

The relationship between forfeiture proceeds and law enforcement budgets has been documented to produce specific tactical changes. A 2019 study published in the Journal of Law and Economics found that in jurisdictions where law enforcement kept forfeiture proceeds, agencies increased their drug seizure activity in the months before budget deadlines — a revenue-seeking behavior that has nothing to do with public safety and everything to do with departmental finances. Another study found that forfeiture activity increased after local government budget cuts, consistent with the hypothesis that agencies use forfeiture as a replacement revenue source when their appropriations are reduced.

This is policing for profit, not policing for public safety. And it is not a marginal phenomenon. The Justice Department's Assets Forfeiture Fund, which holds federal civil forfeiture proceeds, had a balance of approximately $1.8 billion as of 2019. The DOJ's Equitable Sharing distributions to local agencies run into the hundreds of millions annually. This is a law enforcement funding ecosystem built on seizure, not on public budgets — and it creates systematic pressure toward aggressive, economically motivated forfeiture activity regardless of the actual criminal justice justification.

The Constitutional Landscape: Fourth, Fifth, and Eighth Amendments

Civil asset forfeiture creates constitutional problems across at least three amendments, and the Supreme Court has been moving — slowly, and with inadequate speed — toward recognizing them.

The Fourth Amendment prohibits "unreasonable searches and seizures." The seizure of property based on probable cause, without a warrant, without prior notice to the owner, and without any opportunity to be heard before the seizure — the standard procedure in civil asset forfeiture — is constitutionally suspect under any reasonable interpretation of the Fourth Amendment's protections. The Supreme Court's decision in Rodriguez v. United States (2015) tightened the rules on traffic stop detentions; the same logic applied to civil forfeiture would require substantially more process before seizure.

The Fifth Amendment's Due Process and Takings Clauses are implicated by the burden-shifting scheme in most civil forfeiture statutes: the government seizes property, and the owner must then prove the property is "innocent" in a civil proceeding where they have no right to counsel and often face filing fees that exceed the value of what was taken. In Krimstock v. Kelly (2002), the Second Circuit held that due process requires some form of pre-deprivation hearing before long-term retention of seized property. But that ruling has not been extended nationwide or applied broadly.

The Eighth Amendment prohibits excessive fines. In Timbs v. Indiana (2019), the Supreme Court unanimously held that the Eighth Amendment's Excessive Fines Clause applies to the states through the Fourteenth Amendment — and specifically that the clause can limit civil asset forfeiture. Justice Ginsburg's opinion for the Court noted that "the historical evidence assembled by Timbs and the United States as amicus curiae is... overwhelming" that the Excessive Fines Clause was understood to apply to forfeiture at the Founding. Timbs is a significant precedent, but its application to specific forfeitures has been inconsistent — lower courts have returned the case for state-level proceedings and the doctrine is still developing.

New Mexico's Complete Abolition: The Model That Works

In 2015, New Mexico became the first state to abolish civil asset forfeiture entirely. Under the New Mexico law, law enforcement may still seize property incident to an arrest — but to keep it, the government must obtain a criminal conviction, and the proceeds must go to the general fund rather than to the seizing agency. No criminal conviction, no forfeiture. No financial benefit to the seizing agency, no policing for profit.

The New Mexico reform was bipartisan. It passed with support from conservative libertarians concerned about government overreach, civil liberties organizations concerned about due process, and criminal justice reformers concerned about racial and economic targeting. The coalition that formed behind New Mexico's reform — and similar reforms in Montana, Wyoming, and North Carolina — demonstrates that forfeiture abuse is not a partisan issue. It is an issue about government power and constitutional limits that cuts across ideological lines.

The New Mexico model has not produced a crime wave, a collapse in law enforcement effectiveness, or any of the catastrophic consequences that forfeiture defenders predicted. What it has produced is a law enforcement environment where agencies cannot use the forfeiture program as a revenue substitute, where property rights are respected, and where the constitutional baseline — conviction before forfeiture — has been restored. Every state in America should follow this model.

Blueprint for Reform: Restoring the Constitutional Baseline

1. Federal Conviction Requirement. Congress must amend the Comprehensive Forfeiture Act and related statutes to require a criminal conviction before any civil asset forfeiture is completed. Property may be seized incident to arrest and held pending trial, but if the case does not result in conviction, the property must be returned within 30 days. This is the constitutional baseline that the Founders intended and that New Mexico has demonstrated works in practice.

2. Abolish the Equitable Sharing Program. The DOJ's Equitable Sharing Program should be eliminated. It exists primarily to allow local agencies to bypass stricter state laws and to create off-budget revenue streams for law enforcement. Both functions are fundamentally anti-democratic. State reform efforts should not be nullifiable by federal adoption of state seizures.

3. Redirect Forfeiture Proceeds to General Revenue. All forfeiture proceeds — at every level of government — should be directed to the general treasury, not to the seizing agency. This eliminates the fundamental conflict of interest that drives policing for profit. If a law enforcement agency has no financial interest in the outcome of a forfeiture, its decisions about what to seize will be driven by public safety rather than revenue generation.

4. Reverse the Burden of Proof. In any forfeiture proceeding, the burden must be on the government — by clear and convincing evidence — to prove that the specific property is connected to criminal activity. The owner should never bear the burden of proving property "innocent." This reversal is constitutionally required and practically essential to prevent forfeiture from becoming a mechanism for targeting people who cannot afford to fight back.

5. Right to Counsel in Forfeiture Proceedings. Any forfeiture proceeding involving property worth more than $500 must provide the owner with a court-appointed attorney if they cannot afford one. The current system — where owners face sophisticated government lawyers without counsel — is constitutionally indefensible. The asset at stake may be worth more than many criminal sentences.

6. Timely Return Requirement. Property that is seized but not forfeited — including property seized incident to an arrest that does not result in conviction — must be returned within 30 days. The current system, in which seized property can sit for years while owners navigate Byzantine administrative processes to reclaim it, is itself a punitive mechanism operating entirely outside the criminal justice system.

7. Federal Audit and Transparency Requirements. Every civil forfeiture — at every level of government — should be reported to a federal database with the following information: the amount or property seized, the basis for seizure, whether criminal charges were filed, the outcome of those charges, whether the forfeiture was challenged, and the outcome of any challenge. The current opacity of the forfeiture system — where comprehensive data doesn't exist even for Congress — is inexcusable and must end.

Conclusion: Taking America's Property Without Taking America to Trial

Civil asset forfeiture is the legal system's most brazen inversion of constitutional principle. It is a mechanism through which the government seizes property from people who have not been convicted of anything, forces them to prove their property's innocence in a proceeding where they have no right to counsel, and deposits the proceeds into the budgets of the very agencies that seized it. It has been used to take homes, cars, cash, businesses, and life savings from innocent people and from people whose connection to any crime is tenuous at best.

Jefferson wrote that the protection of property rights was the foundation of republican government. The Founders built the Fifth Amendment specifically to prevent the government from taking property without due process. Two and a half centuries later, we have a system that seizes $68 billion in assets using legal procedures specifically designed to avoid due process — and calls it law enforcement.

It is not law enforcement. It is government theft with a legal citation. And it must end.