How easy should it be for cops to steal things from you? Very easy, the Supreme Court ruled in Culley v. Marshall earlier this month. “Civil asset forfeiture,” as it’s called, is a legal tool available in most states and under federal law that allows law enforcement agencies to seize essentially any form of property, including cars, money, and real estate. The state doesn’t need a criminal conviction, criminal charges, or even an arrest. If the police have reasonable grounds to believe that your car is linked to alleged criminal activity, they can seize it. That’s even true if the suspected crime had nothing to do with you, like in Culley, where plaintiff Halima Culley’s car was taken after her son was pulled over for driving with marijuana.
This is clearly an inequitable system. But what if it were directed at worthy targets? What if, instead of targeting assets like Halima Culley’s 2015 Nissan Altima, public safety officials utilized this powerful tool to seize and hold property connected to serious corporate crimes, like dangerous fossil fuel infrastructure whose criminally reckless use by Big Oil companies is endangering countless Americans?
Asset forfeiture was introduced to help law enforcement officials thwart large-scale criminal enterprises—the FBI describes it as a tool that targets “criminal organizations” and “terrorists” in order to “disrupt, dismantle, and deter those who prey on the vulnerable for financial gain.” But these days, a typical case involves the police seizing the property of a low- or moderate-income person of color because of a suspected connection to drugs. Then the person seeking to recover their property is subjected to a labyrinthine process—which the Supreme Court upheld—that makes it nearly impossible for them to recover their assets. In some instances, keeping the assets is the whole point. One amicus brief in Culley describes incidents in which law enforcement officials were caught on tape describing forfeited flat-screen televisions as “very popular with police departments” and referring to forfeited property as “little goodies.” Many departments are permitted to keep the proceeds from selling seized property and, perhaps not surprisingly, those facing budget challenges engage in more seizures. A 2020 study estimated that governments have taken in at least $68.8 billion through these procedures.
Deploying civil forfeiture in these ways is profoundly unjust. But many communities do, in fact, urgently need tools that can disrupt and disable large criminal enterprises that are inflicting serious harms on the public, as civil forfeiture was initially intended to do. Rather than continuing to focus on the property of suspected low-level offenders (or that of their mothers), state and local officials should turn this power against serious offenders causing mass harm, like corporate criminal enterprises. One example is the fossil fuel companies whose actions are responsible for widespread destruction and death in communities across the country.
For decades, Big Oil companies and the products they sell have generated the majority of all global greenhouse gas emissions and defrauded the public to block climate action, despite knowing that these actions would lead to lethal and, in their own words, “globally catastrophic” climate consequences. A growing number of legal experts believe these actions could fall under the category of criminal violations such as reckless endangerment, criminal mischief, conspiracy and racketeering, and homicide. Such charges are routinely lodged against defendants who have not engaged in the same type of willful conduct and are not inflicting the same scale of harm as fossil fuel companies.
Big Oil’s offenses are directly connected to and enabled by their fossil fuel infrastructure, whether it’s Big Oil–owned filling stations that refuse to disclose the risks of their products at point of sale or massive new liquefied natural gas terminals whose lifetime emissions threaten to push humanity over catastrophic climate tipping points, even while the facilities themselves pollute or endanger their surrounding communities. The greenhouse gas emissions spewed by these assets are contributing to vast property destruction and countless deaths, from children burned alive in Maui to families drowned in Puerto Rico, to heatstroke victims in the Pacific Northwest Heat Dome.
As summer brings another lethal season of wildfires, heat waves, hurricanes, and other climate-fueled disasters, it’s worth seriously asking why public safety officials are so focused on taking assets like Halima Culley’s car, rather than seizing Big Oil assets—pipelines, refining plants, oil reserves—that are recklessly endangering entire communities.
After all, the ostensible purpose of the criminal law, and of tools like civil forfeiture, is to keep us safe. That these systems are so often used against the least powerful in our society, in ways that do little to protect us from criminal harm, is tragic. But it’s not the way it has to be. Prosecutors and law enforcement officials across the country have an opportunity to return civil forfeiture practices to their intended use: thwarting large-scale enterprises, including unscrupulous fossil fuel companies, that are engaging in criminality at a grand scale. And unlike most people in Ms. Culley’s position, Big Oil firms have all the resources in the world to engage in the tortuous but Supreme Court–approved processes necessary to recover their property—if it turns out they’re entitled to do so.
