Civil Asset Forfeiture – Guilty Until Proven Innocent

Perhaps no tenant is stronger in the foundation of the American criminal legal system than that one is innocent until proven guilty.  Unfortunately, the practice of civil asset forfeiture – a practice that is expanding across America by local policing agencies – is used to take the belongings of individuals and not giving them back to the individuals without those individual proving that they are not involved in some sort of criminal enterprise.  Unfortunately, many times it is more costly for the individuals to hire attorneys to prove that the assets that have been taken by the police are not criminal in nature.  So the police and local government agencies pocket the proceeds of the seized goods, which can include cash, cars and homes, and use those proceeds for their own ends – even if it has nothing to do with policing.

Now this all seems fishy and completely unconstitutional.  Isn’t there a law to the effect that someone is innocent until proven guilty?  Yes, there is!  That is perhaps the biggest problem with civil asset forfeiture.  Instead of the government proving that the assets seized were part of a crime – that the person is guilty, the onus is placed upon the individual to show that they are innocent.  There is a perverse incentive for cops to keep any seized property for their own benefit and screw the innocent people that have had the property seized.  Civil asset forfeiture completely turns the the fundamentals of the American Legal system on its head.

To show how civil asset forfeiture works, here are two videos showing how civil asset forfeiture is a racket that is used by police and government agencies across America.  The first video is from the Institute for Justice, the second is from the Daily Show which did an expose on the practice and how it is such a lucrative practice for police departments and a difficulty for the individuals who are unfortunately caught in the web of civil asset forfeiture.  We must stand up to civil asset forfeiture and fight for our rights as American citizens to retain our property until proven guilty, not be required to prove that we are innocent.


If you are facing an asset forfeiture for a criminal act you have committed, don’t look to Bankruptcy Court 1bankruptcy to take care of your problems.  Under the well-established relation-back doctrine, the Government’s interest in forfeitable property vests at the time of the offense giving rise to the forfeiture, and the property subject to forfeiture is not estate property subject to the automatic stay. 

Although the automatic stay in bankruptcy can eliminate one’s obligation on a host of financial responsibilities, any asset forfeiture related to a criminal case is not affected by the filing of bankruptcy.  11 U.S.C. 362(a)(1) says that the automatic stay does not affect “the commencement or continuation of a criminal action or proceeding against the debtor.”  Further, because criminal asset forfeitures are brought by the government, the automatic stay also is inapplicable to them.  A stay does not affect “the commencement or continuation of an action or proceeding by a governmental unit… to enforce such governmental unit’s… police and regulatory power.”  11 U.S.C. 362(b)(4). 

In a criminal asset forfeiture case, the government’s interest in forfeitable property vests at the time of the offense that gave rise to the forfeiture, and the property subject to forfeiture is not estate property subject to the automatic stay.  “All right, title, and interest in [forfeitable] property… vests in the United States upon the commission of the act giving rise to forfeiture under this section.”  United States v. United States Currency, 895 F. 2d 908, 916 (2d Cir. 1990)  Because “the forfeiture occurs when the crime is committed,” a defendant has no interest in forfeited property “as of that moment.”  Therefore, the automatic stay of bankruptcy does not affect criminal forfeiture proceedings, which may continue unabated during the course of a bankruptcy. 

Unfortunately, one of the tools state and federal legislatures are adopting is to create civil penalties for criminal behavior.  One civil penalty used frequently in the war on drugs has become the Civil Asset Forfeiture which is commonly used to seize private property that has been used to facilitate violations of various drug laws.

One of many harsh outcomes of America’s over-enthusiastic war on drugs is that the protection of bankruptcy afforded Americans in the Constitution cannot protect property and assets from seizure when it has been involved in a drug forfeiture case.