Civil Forfeiture: Can it be Done Well? A Comparison of Ireland and the United States

CIVIL FORFEITURE: CAN IT BE DONE WELL? A COMPARISON OF IRELAND AND THE UNITED STATES

Jack McGee

This paper will begin with an overview of the American system of civil forfeiture. After providing a general critique, it will transition into a discussion of the Irish system, which has been considered a “good” example of the practice. It will then use the previous comparison as a backdrop against which we can weigh the virtues of considering Ireland a “model” for other countries to follow. It will conclude that the Irish system’s flaws come into sharp focus when applied to the American example.

What Is Civil Forfeiture?

This paper sets aside the necessary and ongoing debate regarding the morality and fairness of civil asset forfeiture and will instead focus on the efficacy of the practice and its regulation. However, a brief overview of what civil forfeiture is, and a few of the common critiques of the practice, is necessary.

Civil asset forfeiture is a process under which a law enforcement agency seizes assets it suspects have been, or will be used, to commit a crime. Key to both its effectiveness as a law enforcement tool and the danger it poses to criminal justice is the lower burden of proof applied. As the name suggests, civil asset forfeiture operates under the civil burden of proof, the “balance of probabilities”. This gives significant flexibility to law enforcement agencies and allows them to target persons and assets that would otherwise slip through the high burden of proof sought in criminal prosecutions. However, it also raises significant concerns, especially regarding the presumption of innocence and the protection of personal property.

The American System

The present form of civil asset forfeiture in the United States was introduced during the height of the 'War on Drugs', a decades-long government effort to undermine drug use and trafficking1. These federal mandates liberalised the existing law and continue to

1 EL Jensen & J Gerber ‘The Civil Forfeiture of Assets and the War on Drugs: Expanding Criminal Sanctions While Reducing Due Process Protections’ (1996) Crime & Delinquency 42(3), 421–434.

allow law enforcement agencies at every level of government to seize assets with very little regulatory oversight.

One of the most necessary aspects of American civil asset forfeiture to make clear is that there is no single unified approach, with different jurisdictions employing wildly different versions of the practice. 2 Even within single states, civil asset forfeiture is applied inconsistently, a consequence of the power it delegates to individual policing organisations. Furthermore, federal organisations can provide a loophole to local law enforcement in states that have abolished the practice by adopting their forfeitures through a process called ‘equitable sharing’3 .

American civil forfeiture has attracted particular critical attention because of the manner in which law enforcement agencies use the assets they seize. In most states, assets seized during civil forfeiture actions are retained by the law enforcement agencies themselves and are incorporated into their own budgets4. One police chief described the funds as ‘pennies from heaven’ that could be used for ‘a toy’, or anything else the department thought it needed. 5

The Irish System

Ireland’s entanglement with civil asset forfeiture also began in the 1980s, when the State introduced a temporary version of the practice to target funds controlled by terrorist organizations through the Offences Against the State Act (Amendment) 1985. 6 It was then permanently woven into the fabric of Irish law through the Proceeds of Crime Acts 1996-2005 (POCA) in an effort to also combat organised crime.

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2 For an overview of the individual state approaches, see Institute for Justice, 'Grating State and Federal Civil Forfeiture Laws' (Policing for Profit, November 2015) <https://ij.org/report/policing-for-profit-2/grading-state-federal-civil-forfeiture-laws/> accessed 3 March 2022. 3 Charles Kucher, ‘Asset forfeiture: State restrictions and equitable sharing’ (2010). Master's Theses and Capstones 139 4 Lydia E Ellsworth, ‘Pennies from Heaven or Excessive Fines from Hell? Commonwealth v. 1997 Chevrolet Keeps Civil Asset Forfeiture's Threat to Homeownership in Purgatory’ (2018) 63 Vill L. Rev 125. 5 ibid 126. 6 Colin King, ‘Civil Forfeiture in Ireland: Two Decades of the Proceeds of Crime Act and the Criminal Assets Bureau’ in Ligeti and Simonato (eds), Chasing Criminal Money: Challenges and Perspectives on Asset Recovery in the EU (Hart Publishing 2017). 7 ibid.

Under the Irish system, the forfeiture of assets is managed by the Criminal Assets Bureau, which was created through supporting legislation for the POCA. The Bureau, which is technically a separate body corporate from the Gardai, is primarily composed of police officers, but its ranks also include employees from the Department of Justice, Department of Social Protection, and Revenue. 8 Before the Bureau can use its power to seize or freeze assets, it must first seek High Court approval (given on the balance of probabilities).

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Why is the Irish system seen as better?

Legal challenges to the Irish system have been ongoing since its introduction. 10 Nevertheless, amongst both proponents and opponents, the Irish approach to civil forfeiture has been considered a model example of the practice internationally. 11

The most significant source of praise is the Irish system’s oversight board, the aforementioned Criminal Assets Bureau. Unlike the United States, where the application of civil forfeiture is primarily guided by law enforcement agencies themselves, the CAB strictly oversees the use of the practice in Ireland. This serves as a counterweight to the self-interest of law enforcement, who are otherwise incentivized to use civil forfeiture as a means of casting as wide a net as possible to their direct financial benefit. This broad use of the power often implicates innocent persons and their property.

We can see how the Irish model is more effective thanks to this oversight by examining how it is applied practically. Critically, the Irish model, as previously mentioned, operates on a post-conviction approach, where the Court has to issue a warrant before the forfeiture process can begin. As a result of this, the application of civil forfeiture in Ireland has been almost exclusively limited to those who have been otherwise implicated in high-level crimes. It is a tool applied most often as part of greater, targeted operation against those who can be easily proven to have significant connections to the criminal underworld or paramilitary organisations. Significantly, the CAB is restricted

8 Criminal Assets Bureau 'About Us' 3 March 2022 <https://www.cab.ie/about-us/> accessed 3 March 2022. 9 Council of Europe and the European Union, Impact Study of Civil Forfeiture” for the Criminal Asset Recovery Project in Serbia (2013) 10. 10 King (n 6). 11 Impact Study of Civil Forfeiture for the Criminal Asset Recovery Project in Serbia (n 9) 55. 124

by statute from pursuing property worth less than €5,000, which means that low-level offenders are rarely targeted by the practice. 12

American civil forfeiture, on the other hand, does not require any advance warrant. This looser approach means that law enforcement can use civil forfeiture in their day-to-day activity. This particularly manifests in how widely it is used during routine traffic stops, where there was no original suspicion beyond a traffic offence. 13 It is also often applied to punish who they suspect, but have not proven, are, or are involved with, low-level drug offenders. Rather than focusing on the ‘top’ of the rings they purport to target, the average seizure in many states is valued in the hundreds of dollars. 14 This suggests that these actions are likely not focused on the so-called ‘kingpins’ the laws were introduced to undermine. This ‘shoot first, ask questions later’ approach often victimises innocent people. There have been a number of cases where the property of innocent, uninvolved third parties was targeted by police and seized, often costing those persons more to retrieve the asset than it was originally worth. 15

Application to the United States

On a surface level, there are a number of places where the US could learn from the Irish example. In particular, the statutory requirement to first secure a warrant before seizing or freezing a person’s assets could be useful in refining the application of the practice. After examining the Irish system more closely, however, it becomes clear that its benefits cannot be directly applied to other law enforcement systems, especially that of the United States.

The reason for this lies in one the Irish model’s greatest strengths: the CAB. One of the most cited criticisms of the Bureau, and of the Irish model in general, is that it is run by members of the police, alongside members of other agencies. Oversight of their activities is, relative to other government bodies, quite limited. In this way, the structure

12 Proceeds of Crime (Amendment) Act 2016, s 4. 13 William Freivogel, 'No Drugs, No Crime and just Pennies for School: How Police Use Civil Asset Forfeiture' (Pulitzer Center, 18 February 2019) <https://pulitzercenter.org/stories/no-drugsno-crime-and-just-pennies-school-how-police-use-civil-asset-forfeiture> accessed 3 March 2022. 14 Ian Macdougall, 'Police Say Seizing Property Without Trial Helps Keep Crime Down A New Study Shows They’re Wrong' (ProPublica, 14th December ) <https://www.propublica.org/article/police-say-seizing-property-without-trial-helps-keep-crimedown-a-new-study-shows-theyre-wrong> accessed 3 March 2022. 15 ibid.

of the Criminal Assets Bureau places a significant and precarious amount of trust in An Garda Siochana.

Bringing this system to the US would do little to change the overall effectiveness and judiciousness of civil forfeiture, as American law enforcement agencies have shown little interest in effectively self-regulating. If anything, a police-run oversight board could act as a bureaucratic obstruction to greater civil forfeiture reform, especially at the federal level. And, even if states were to introduce their own individual boards or bureaus, the ‘equitable sharing’ loophole mentioned earlier would allow individual law enforcement agencies to circumvent these restrictions thanks to federal intervention. Solutions to the significant issues with civil forfeiture in the United States are necessary, but they cannot come from within law enforcement agencies themselves.

Applying the Irish system against American policing reveals the plastered-over cracks inherent in the Criminal Assets Bureau. Despite the plaudits it has received, the fairness of the CAB is directly tethered to the ethicality of those who control its use. While this has not yet posed significant issues in Ireland, the potential it provides for abuse undermines its use by other states, particularly America, as a “model” example of civil forfeiture.

Conclusion

Civil forfeiture, by its very nature, is a sweeping and potentially dangerous tool. Despite what proponents of the Irish model may argue, there is no way for the practice to be effectively employed without aspects of it being left open to manipulation. The paperthin divider separating the Irish model from a far more dysfunctional one is its (relatively) healthy culture of policing, rather than its regulatory oversight. A significant overhaul of the American approach to law enforcement would be necessary before the Irish model would be effective.

While the Irish approach to civil forfeiture should be lightly praised, especially for its post-conviction approach, the weaknesses inherent in its regulation mean that it should not be used as a model for reform.