The Constitution’s Bill of Rights Fifth Amendment (made applicable to the States by the Fourteenth Amendment) guarantees that no individual will be deprived of “life, liberty, or property without due process of law.”
Yet the awesome and sweeping power of the federal government’s asset forfeiture laws (18 U.S.C. Sec. 981, 982, et seq., 21 U.S.C. 853, 28 U.S.C. 2461, etc) operate today in a way that shocks our nation’s conscience. The federal government has the power to seize citizens’ cars, cash, bank accounts, jewelry, real estate, and other assets/hard-earned property without formally charging them with any crime simply based upon an allegation that the property is somehow connected to illegal activity (proceeds of or being used as a tool to facilitate crime). Many times these seizures take place before a lawsuit is even filed against the property or assets. Notices of is endens, which effectively denude and retard the alienability of real property, are also filed by the federal government in the register of deeds records, sometimes before any formal action is brought.
Our Nation’s Founders knew that property was an essential vehicle through which we exercise our liberty. That is why property rights are enshrined in the Fifth Amendment. The Supreme Court has embraced this concept in the context of political campaign donations law and the First Amendment right to free speech. Yet, property is confiscated from people all of the time without them ever being charged with a crime under these asset forfeiture laws, and folks who do not have the resources to hire attorneys to fight to get their property back are left without recourse since there is no right to an appointed attorney when the controversy is just a “civil” lawsuit.
While these forfeiture laws started out with the good intention of providing federal law enforcement with tools that could be used to dismantle large-scale criminal enterprises, the real threat to liberty is presented by the for-profit incentives these law enforcement agencies (the agencies are given a share of the spoils) have to wield these laws against people who in no way shape or form have any connection to large-scale organized crime. Our Constitution envisions that the Government will be a referee, not a market participant.
Furthermore, if the federal government claims that the “tainted” proceeds of crime have been concealed, spent, or otherwise placed beyond U.S. jurisdiction, they can then seek to confiscate “substitute assets,” that is assets or property that–without question–are not connected to criminal activity. Tarlton | Polk PLLC attorneys have worked on research into this highly controversial area of law and defended people against these types of claims.