“It is impossible to introduce into society a greater change and a greater evil than this: the conversion of the law into an instrument of plunder.”
- Frédéric Bastiat
The term “plunder” often conjures images of criminals ravaging the streets. It may remind us of pirates or bandits. What it doesn’t bring to mind is legal activities by trusted institutions. Yet, that is exactly the meaning meant by French philosopher Frederic Bastiat, who coined the term “legal plunder” in his most famous work The Law (1850). This concept asserts the ability of the law to be weaponized as a tool of injustice, or plunder.
Legal plunder today takes the form of civil asset forfeiture. Civil asset forfeiture allows law enforcement officials at various levels of government to seize private property without due process. While these laws were enacted to restrict illegal trade and fight organized crime, they have been weaponized against law abiding citizens with increasing frequency.
In my latest policy paper, Legal Plunder: Civil Asset Forfeiture in North Dakota, I examined North Dakota’s forfeiture laws. I discovered North Dakota’s laws heavily favor law enforcement and offer few citizen protections. In fact, in a 2014 study by the Institute for Justice, North Dakota received an “F” grade for citizen protections.
I want to highlight the two biggest findings from my report: lack of due process and lack of transparency.
First, state law shifts the burden of proof to the accused. In North Dakota, law enforcement officials can seize private property as long as they have probable cause that it was involved in illegal activity. To regain possession, a citizen must appeal to the court and prove the innocence of his or her property, even if the citizen has not been found guilty of a crime.
For example, if you borrowed your car to your roommate and law enforcement have probable cause to believe it was used to transport drugs, they can confiscate and even sell your car. This is without you knowing or committing a crime, or sometimes, even without your roommate being found guilty of a crime. While this is an extreme example, it illustrates the lack of due process rights afforded in these cases.
Second, state law does not require confiscated assets to be tracked. This can arguably create incentives for law enforcement to “police for profit.” In North Dakota, law enforcement receive up to 100 percent of the proceeds from civil asset forfeiture. Given the lack of available data on this issue, it is difficult to measure the impact, if any, civil asset forfeitures have on North Dakota’s citizens and the state economy.
While there is no evidence to condemn or accuse state and local law enforcement officials of any wrongdoing, the state should consider making reforms to increase citizen protections and improve transparency.
North Dakota consistently ranks among the worst states in the country when it comes to civil asset forfeiture. The state should bring an end to instruments of legal plunder by strengthening private property rights and transparency.