Civil asset forfeiture: Seize first, prove later

Our legal system rests on a simple yet powerful principle: innocent until proven guilty. A process called “civil asset forfeiture” turns that principle on its head, allowing law enforcement to permanently seize your property without a criminal conviction or even a criminal charge. 

Civil asset forfeiture starts when law enforcement seizes private property including cash, vehicles, firearms, real estate, or other property they suspect is connected to criminal activity. After seizure, prosecutors initiate a civil proceeding against the property itself rather than against its owner. 

Because the process is civil, property owners are not afforded the same rights as in criminal court. The burden of proof is on owners to prove their innocence, even if they are never convicted of a crime connected to the seized property. If owners do not respond to a forfeiture complaint within 30 days, their property can be forfeited without a judicial hearing. 

Owners also do not have the same right to legal representation and must bear the financial burden. If a property’s value is below the expected cost of litigation, many owners will choose to abandon their property even if they believe the seizure lacked legal justification. 

The alternative to civil asset forfeiture is criminal asset forfeiture, which requires a criminal conviction connected to seized property for forfeiture to take place. Shifting the process from civil to criminal affords citizens all the rights and protections of criminal court. 

Criminal forfeiture solves the obvious constitutional issues with civil forfeiture, but the process still creates an inherent conflict of interest when the agencies seizing property also retain the proceeds. 

Averse incentives 

Current S.C. law directs the first $1,000 in cash forfeiture to be used exclusively by the seizing law enforcement agency. Of any amount above $1,000, 75% goes to the seizing law enforcement agency, 20% goes to the prosecuting agency (S.C. Attorney General’s Office or local solicitor), and 5% goes to the S.C. Treasurer’s Office. A report by the S.C. Advisory Committee to the U.S. Commission on Civil Rights analyzed $17 million in state forfeiture revenue between 2014 and 2016 and found that over half of the cash seizures ultimately forfeited were under $1,000. 

Some states that require criminal forfeiture have eliminated the financial incentive by directing state forfeiture proceeds to a non-law enforcement fund, but law enforcement in those states can bypass that by participating in the federal “Equitable Sharing Program.” 

State and local agencies can collaborate with federal agencies and receive a share of forfeiture proceeds through equitable sharing without a criminal conviction because federal law permits civil asset forfeiture. The Institute for Justice reports that state and local agencies nationwide received 59% of equitable sharing proceeds in 2023, but the program allows them to request and receive up to 80%. 

Equitable sharing occurs in one of two ways: joint investigations or federal adoption. 

Joint investigations occur when federal and state or local law enforcement agencies work together throughout a criminal investigation. The federal government can pursue civil asset forfeiture under federal law and share a percentage of the proceeds with the state or local agencies proportional to their participation in the investigation. 

Federal adoption operates differently. Under that program, state or local officers first seize property under state law and later ask a federal agency to “adopt” the seizure. The federal government then processes the forfeiture under federal law instead of state law. Once the forfeiture becomes final, the federal government returns a significant portion of the proceeds to the state or local agency that made the original seizure. 

Unlike a joint investigation, federal adoption does not require meaningful federal involvement before the seizure occurs. In practice, federal adoption only serves as a way for state agencies to use equitable sharing as a means of circumventing state forfeiture laws. 

The Institute for Justice found that S.C. law enforcement agencies generated at least $231 million in forfeiture revenue from 2000 to 2023. More than half—nearly $120 million—was collected through equitable sharing. A lack of reporting requirements makes it unclear how much of South Carolina’s equitable sharing revenue comes from joint investigations versus federal adoption. 

Ending the abuse 

New Mexico lawmakers eliminated the financial incentive associated with asset forfeiture and closed the federal adoption loophole by directing all equitable sharing funds to their state’s general fund. 

Critics of civil asset forfeiture say that policy doesn’t go far enough. Jon Guze, Senior Fellow in Legal Studies at the John Locke Foundation, argues the only way to truly prevent abuse is to prohibit state and local agencies from engaging in equitable sharing via adoption and bar equitable sharing from joint investigations unless the seized assets exceed a specified value threshold, such as $100,000. 

South Carolinians deserve serious asset forfeiture reforms, but the state must also provide law enforcement agencies with adequate funding to protect and serve the public. Lawmakers should eliminate the financial incentive of asset forfeiture and prevent state and local agencies from using equitable sharing to circumvent state law. When necessary, lawmakers should offset any resulting revenue shortfalls with corresponding increases in general fund appropriations. 

In 2021, Rep. Tommy Pope, R-York, who previously served as the 16th Circuit solicitor, sponsored a bill alongside a bipartisan coalition to replace civil asset forfeiture with criminal asset forfeiture and establish reporting requirements. It’s a measure the General Assembly should revisit when it convenes in January for the start of the new legislative session. 

Civil asset forfeiture is not the invaluable tool law enforcement officials claim it is. In practice, it effectively amounts to government theft of personal property, representing one of the greatest modern violations of our founding principles. 

“That it is better a hundred guilty persons should escape, than that one innocent person should suffer, is a maxim that has been long and generally approved; never, that I know of, controverted.” – Benjamin Franklin (March 14, 1785)