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On the Banana Republic Practice of Civil Asset Forfeiture

Here’s a letter to the Wall Street Journal:


Robert Frommer deserves applause for challenging the FBI to return to his client money that the agency seized using civil asset forfeiture (“How the FBI Took an Innocent Woman’s Savings,” March 8).

More Americans citizens – indeed, more American judges – should be aware of the origins of civil asset forfeiture. This legal maneuver was created centuries ago in Britain to enable courts there to lawfully punish owners of captured pirate ships. Because these ship owners were physically outside of British jurisdiction, they couldn’t be punished in Britain as criminals. To deal with the problem of criminal wrongdoers outside of British jurisdiction, Parliament created civil asset forfeiture under which property used to commit crimes – then mostly piracy and smuggling – could be charged in civil actions with wrongdoing. If the property was found ‘guilty,’ the British government gained ownership of the property.

Crucially, civil asset forfeiture could be used only when the owner of property allegedly used to commit a crime was outside of British jurisdiction. Otherwise, the property could not be forfeited until and unless its owner was duly convicted in British courts of criminal wrongdoing – which convictions, of course, require a higher standard of proof than do findings of liability in civil actions.*

The fact that today in the U.S. civil asset forfeiture is used against persons who are within the jurisdiction of American courts reflects a dangerous distortion of civil-asset-forfeiture’s original purpose: U.S. authorities seize ownership of the property of people who the authorities can, but simply don’t bother to, prosecute criminally. Perversely, therefore, civil asset forfeiture in the U.S. is now a form of government piracy flying under a false and flimsy flag of lawfulness.

Donald J. Boudreaux
Professor of Economics
Martha and Nelson Getchell Chair for the Study of Free Market Capitalism at the Mercatus Center
George Mason University
Fairfax, VA 22030

* On the history of civil asset forfeiture, see Donald J. Boudreaux and A.C. Pritchard, Innocence Lost: Bennis v. Michigan and the Forfeiture Tradition, 61 Missouri Law Review 593 (1996), and Donald J. Boudreaux and A.C. Pritchard, Civil Forfeiture and the War on Drugs: Lessons from Economics and History, 33 San Diego Law Review 79 (1996).

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