Policing for Profit
In 2019, nursing student and single mother Stephanie Wilson had not one, but two cars seized by the Detroit Police Department, losing the first one forever. 1 That same year, the U.S. Drug Enforcement Administration and the Transportation Security Administration seized retiree Terry Rolin’s life savings of $82,373 from his daughter as she passed through Pittsburgh International Airport on her way to open a joint bank account for him. 2 Three years earlier and about 1,000 miles away, a sheriff’s deputy in rural Muskogee, Oklahoma, seized more than $53,000 from Eh Wah, the tour manager for a Burmese Christian musical act, during a routine traffic stop; the funds were concert proceeds and donations intended to support Burmese Christian refugees and Thai orphans. 3 None of these victims were convicted of any crime.
Their stories illustrate a nationwide problem: civil forfeiture. Civil forfeiture allows police to seize property on the mere suspicion that it is involved in criminal activity. Prosecutors can then forfeit, or permanently keep, the property without ever charging its owner with a crime. By contrast, criminal forfeiture requires prosecutors to prove beyond a reasonable doubt that an owner is guilty of a crime and then, in the same proceeding, prove the property is connected to the crime.
As this report demonstrates, the cases of Stephanie Wilson, Terry Rolin and Eh Wah are not isolated incidents: Local, state and federal agencies use civil forfeiture to collectively forfeit billions of dollars each year.
Civil forfeiture laws generally make it easy for governments to forfeit property—and hard for people to fight. As this report documents, these laws typically set low standards of proof, which is the evidentiary burden prosecutors must meet to connect property to a crime. And they provide weak protections for innocent owners whose property is caught up in forfeiture but who have done nothing wrong.
Most forfeiture laws also make seizing and forfeiting people’s property lucrative for law enforcement. In most states and under federal law, some or all of the proceeds from forfeiture go to law enforcement coffers. Thus, Wayne County law enforcement, federal law enforcement and Muskogee County law enforcement stood to benefit financially from forfeiting Stephanie’s cars and Terry’s and Eh Wah’s cash. Giving law enforcement this financial stake in forfeiture can distort priorities, encouraging agencies to pursue financial gain over public safety or justice, cash over crime or contraband. 4 Together, civil forfeiture’s ease and financial rewards drive its use nationwide.
Despite the billions generated, our data indicate the typical individual cash forfeiture is relatively small—only a few hundred or a few thousand dollars. This suggests that, aside from a few high-profile cases, forfeiture often does not target drug kingpins or big-time financial fraudsters. More than that, the data show why it often makes little economic sense for property owners to fight. The cost of hiring an attorney—a virtual necessity in navigating complex civil forfeiture processes, where there is generally no right to counsel—often outweighs the value of seized property. This is why Stephanie abandoned her first car. 5 Still, many small forfeitures such as hers can make a great deal of economic sense for law enforcement. In just two years, the Wayne County forfeiture program that claimed Stephanie’s car generated $1.2 million in revenue from 2,600 cars. 6
In these and other ways, civil forfeiture threatens not only property rights but also due process rights. Indeed, in 2017, U.S. Supreme Court Justice Clarence Thomas questioned whether modern civil forfeiture laws “can be squared with the Due Process Clause and our Nation’s history.” 7
Civil forfeiture is not only a civil process, it is an “in rem” proceeding, meaning it is a lawsuit against the property, not the person. (Hence, odd case names like Richardson v. $20,771.00U.S. Currency and In re: U.S. Currency $31,780; 2012 Volkswagen Jetta, VIN 3VW3L7AJ0CM366141.) 8 As a result, Justice Thomas noted, owners can lose property even when innocent, and procedural protections common to criminal proceedings usually do not apply.
Justice Thomas also observed that today’s civil forfeiture laws have expanded far beyond their once-narrow historical purposes—specifically, taking property in piracy and customs cases when the owner was overseas and outside U.S. jurisdiction. 9 Now forfeiture attaches to hundreds of crimes, many if not most of which are purely domestic. The U.S. Department of Justice’s forfeiture database, for example, contains over 377 unique statutes authorizing forfeiture. 10
Forfeiture also poses a separation of powers concern. In allowing agencies to self-fund outside the normal appropriations process and with little oversight, it undermines legislatures’ power of the purse and invites questionable expenditures, such as $70,000 for a muscle car in Georgia, 11 $250,000 for lavish travel and meals in New York, 12 and $300,000 for an armored vehicle in Iowa. 13
Recent rulings from the U.S. and Indiana Supreme Courts highlight another constitutional problem with forfeiture: If disproportionate to the alleged crime, a forfeiture can violate the Eighth Amendment’s prohibition on excessive fines. 14 And forfeiting an innocent person’s property is always disproportionate.
Beyond its constitutional problems, forfeiture poses policy concerns. For example, forfeiture’s financial incentive may promote negative interactions between police and the public, a particular risk to communities of color. 15 Indeed, there is evidence forfeiture disproportionately affects Black men. 16 And recent research finds increases in arrest rates for Blacks and Hispanics during times of fiscal stress and when law enforcement can benefit financially from forfeiture under state law. 17 Not only may forfeiture target communities least equipped to fight back, it may further burden lower-income and other disadvantaged communities by depriving them of needed resources. 18
This third edition of Policing for Profit presents the largest collection of state and federal forfeiture data yet assembled and provides newly updated grades of state and federal civil forfeiture laws. It also draws on a growing body of evidence regarding whether forfeiture works to fight crime. 19
Most states and the federal government have laws allowing police and prosecutors to seize and permanently keep Americans’ cash, cars, homes and other property suspected of being involved in a crime—without regard to the owners’ guilt or innocence. This is civil forfeiture, and it is rampant nationwide, with local, state and federal agencies using it to collectively forfeit billions of dollars each year. Many of these billions go directly to law enforcement, including the same police and prosecutors who seize and forfeit property.
This third edition of Policing for Profit presents the largest collection of state and federal forfeiture data yet assembled and provides updated grades of state and federal civil forfeiture laws. Key findings include:
Forfeiture Is Big and It Happens Nationwide
Many jurisdictions fail to provide a full accounting of forfeiture activity, so any estimate of forfeiture’s scope will undercount. Still, by any measure, forfeiture activity is extensive nationwide, sending billions of dollars to government coffers.
In 2018 alone, 42 states, the District of Columbia, and the U.S. departments of Justice and the Treasury forfeited over $3 billion. This is the year for which we have data from the largest number of states.
Looking at a longer time period, 2002 to 2018, 20 states and the federal government forfeited over $63 billion. The remaining states did not provide data for those 17 years.
Since 2000, states and the federal government forfeited a combined total of at least $68.8 billion. And because not all states provided full data, this figure drastically underestimates forfeiture’s true scope.
Among the states with 2018 data, Florida, Texas, Illinois, California and New York took in the most forfeiture revenue. But once state populations are factored in, Florida, Illinois, Tennessee, Rhode Island and Nebraska used forfeiture most extensively.
State and Federal Laws Make Forfeiture Easy and Profitable for Law Enforcement
This report grades state and federal laws on three core elements: (1) the standard of proof the government must meet to forfeit property, (2) protections provided to innocent owners whose property is seized, and (3) the share of forfeiture proceeds that flows to law enforcement coffers, providing a financial incentive to seize and forfeit. These elements reflect both how easy forfeiture is for the government—and conversely, how hard it is for property owners to fight—and how profitable forfeiture is for law enforcement.
Thirty-five states earn overall grades of D+ or worse for extending property owners meager protections and giving law enforcement large financial stakes in forfeiture proceeds. And federal civil forfeiture laws are among the nation’s worst, earning a D-.
New Mexico earns the nation’s only A for abolishing civil forfeiture and eliminating any financial incentive by directing forfeiture proceeds to the state’s general fund.
Since the previous edition of Policing for Profit, 32 states and the federal government have adopted some form of forfeiture reform. Unfortunately, few of these reforms have tackled the central problems with civil forfeiture laws graded by this report.
New Research Shows Eliminating Civil Forfeiture Does Not Increase Crime
This edition of Policing for Profit presents new research indicating that states can adopt stronger forfeiture reforms without compromising public safety. The study examines New Mexico’s best-in-the-nation forfeiture laws, adopted in 2015. To see whether abolishing civil forfeiture negatively impacted public safety, the study compares New Mexico’s crime rates to those of neighboring Colorado and Texas before and after reform.
Contrary to claims that abolishing civil forfeiture would increase crime rates, multiple analyses across five different measures of crime find no evidence of any negative effect from New Mexico’s reform.
The state’s overall crime rate did not rise following the reform, nor did arrest rates drop, strongly suggesting civil forfeiture is not an essential crime-fighting tool and law enforcement agencies can fulfill their mission without it.
Federal Equitable Sharing Creates a Giant Loophole
Even in states with better civil forfeiture laws, innocent people can still lose property to forfeiture. That is because the federal government offers a giant loophole: federal equitable sharing. Equitable sharing allows state and local law enforcement agencies to partner with federal agencies to seize and forfeit property under the federal government’s permissive laws and receive up to 80% of the proceeds, regardless of state law. By handing over seized property to the federal government, state and local law enforcement agencies can harness the litigation power of the federal government—and circumvent state laws that provide better protection to property owners or direct forfeiture proceeds to a neutral account.
Each year, the federal government pays out hundreds of millions of dollars to state and local agencies participating in the equitable sharing program—$333.8 million in 2019 alone and more than $8.8 billion in total from 2000 to 2019.
In a nationwide ranking that factors in drug arrest rates, Rhode Island, New York, California, Massachusetts and Texas participate most heavily in equitable sharing.
Several states, including New Mexico, have shrunk the equitable sharing loophole in various ways. But in most states, it remains wide open.
Easier Forfeiture Procedures Predominate
With civil forfeiture, property is on trial—not a person—meaning the government need only demonstrate property’s link to a crime, not its owner’s personal culpability in that crime. This is in contrast to criminal forfeiture, which requires prosecutors to prove both the owner’s guilt beyond a reasonable doubt—a far more difficult proposition—and the property’s connection to the crime. And at the federal level and in more than a dozen states, there is a third option: administrative forfeiture. A form of civil forfeiture, administrative forfeiture allows an agency to forfeit property almost automatically without meaningful judicial involvement.
Civil forfeiture greatly outpaces criminal at the federal level and in the three states that track this information.
At the federal level, the vast majority of forfeitures are processed administratively. And in Minnesota, the only state that reliably tracks this information, prosecutors initiate over three-quarters of cases administratively.
Forfeiture Isn’t Targeting Kingpins and Ordinary People Can’t Fight Back
Proponents argue forfeiture fights crime by hitting criminals where it hurts—in their wallets. Our data cast doubt on this claim, suggesting forfeiture instead often targets ordinary people. The data also show people rarely fight back.
The median currency forfeiture is small, averaging just $1,276 across 21 states with available data. In some states, the median forfeiture is only a few hundred dollars. These low values suggest forfeiture often is not targeting kingpins or major financial fraudsters.
More than that, it may not make economic sense for people to contest such low-dollar forfeitures. Conservatively, hiring an attorney to fight a relatively simple state forfeiture case costs at least $3,000—more than double the national median currency forfeiture.
This may help explain why available data suggest forfeitures are frequently uncontested, resulting in nearly automatic wins for the government. In the four states that track this information, people seek return of their property in 22% of cases or fewer.
Evidence Suggests Forfeiture Doesn’t Work
Our data also call into question claims that forfeiture fights crime and the proceeds can be used to compensate victims or invest in anti-drug and other community programs.
Few, if any, forfeiture programs track whether forfeiture cases are linked to, let alone advancing, criminal investigations. As multiple federal inspectors general reports have noted, this makes it impossible for officials to evaluate program effectiveness and calls into question whether forfeiture efforts are advancing legitimate goals.
A growing body of research, including the new evidence from New Mexico presented here, finds little evidence forfeiture reduces crime.
Although federal agencies highlight the billions they have recovered and returned to victims of Bernie Madoff’s Ponzi scheme through forfeiture, such examples are outliers. Overall, DOJ spends less than a third of forfeiture proceeds on victim restitution or other third-party compensation.
While some states mandate spending on victim compensation or community programs, data from 13 states suggest agencies otherwise rarely use forfeiture proceeds for these purposes. In 2018, agencies in the 13 states spent almost no proceeds on victims and just 9% on community programs on average.
This report’s findings add to a growing body of research casting doubt on forfeiture’s utility as a law enforcement tool. They also illustrate the pressing need for forfeiture reform. To protect Americans from losing property unjustly, states and the federal government should follow New Mexico’s example and end the inherently abusive practice of civil forfeiture, where owners’ personal criminal culpability is generally irrelevant to the proceedings.
States and the federal government should also direct all forfeiture proceeds—including those from criminal forfeitures—to neutral funds, beyond law enforcement control, thereby ending agencies’ self-funding and eliminating their incentive to police for profit.
And to prevent agencies from circumventing their state’s forfeiture laws, the federal government should abolish equitable sharing. Until it does, states should prohibit agencies from participating in the program.
As this report’s findings and New Mexico’s experience show, states and the federal government can do all this without sacrificing public safety. It is past time other states and the federal government followed New Mexico’s lead on forfeiture—there is nothing to lose and much to gain.
Forfeiture Is Lucrative for Governments Nationwide
By any measure, our data show forfeiture activity is extensive nationwide. In 2018 alone, the year for which we have data from the greatest number of states, 42 states, 1 D.C. and the federal government forfeited over $3 billion. Of that, $500 million was forfeited under state law and $2.5 billion under federal law through DOJ’s and Treasury’s forfeiture programs. Looking at fewer states but over a longer period, 20 states, 2 DOJ and Treasury forfeited over $63 billion from 2002 to 2018—$21 billion under state law and nearly $42 billion under federal. The total forfeited since 2000 across all states in our database and the federal government is larger still: $68.8 billion, including over $23 billion under state law and almost $46 billion under federal.
It should be noted that the federal government shares substantial sums from the proceeds of federal forfeitures with state and local agencies that participate in its equitable sharing program. Equitable sharing allows state and local law enforcement agencies to partner with the federal government to seize and forfeit property under federal law—and receive up to 80% of the proceeds—regardless of state law (see “Equitable Sharing Creates a Giant Loophole”). Of the nearly $46 billion forfeited by the federal government since 2000, almost one-fifth of it ultimately went to state and local agencies participating in equitable sharing. This means far less money lands in federal coffers—and far more lands in state coffers—than these figures suggest.
Our dataset, though immense, also underestimates state forfeiture activity in other, more important, ways. Most obviously, we do not have revenue data for all states, nor even for most states, covering the entire 20-year study period. Some states, like Alaska, have never required any statewide reporting. 3 Many others require reporting now but did not during part or all of the study period, while Ohio, swimming against transparency’s rising tide, gutted its reporting requirements in 2012. 4 And in some states with reporting requirements, agencies fail to report as required. This has been the case in Mississippi, 5 for example, and, until recently, Kentucky. 6
Even states with a long track record of maintaining forfeiture records paint an incomplete picture. For example, many states track only drug-related forfeitures, leaving forfeitures stemming from other crimes unaccounted for. Some states track forfeiture activity merely for financial accounting reasons—not with the intent to shine a light on how agencies are using forfeiture. Rather than report the value of each forfeiture, such states typically report only the total of forfeited currency and proceeds from forfeited property that was sold. And many states report only net revenues after factoring out property maintenance expenses, like vehicle towing or repair, thus deflating the total value of property taken.
Finally, other states simply have less than optimal methods of tracking forfeiture activity. For example, Missouri prosecuting attorneys report annually but do not report on forfeitures of property seized in previous years. Arkansas and Mississippi do not consistently track whether property is forfeited (as opposed to returned) and instead estimate forfeitures using the values of seized property, which are themselves estimates. 7 These reporting variations mean a substantial chunk of revenue is missing from our data, making our estimates of state forfeiture activity undercounts.
Forfeiture Is Hard for Owners, Easy for the Government
On top of the low value of many seizures and the high legal costs of challenging a forfeiture action, civil forfeiture also generally requires owners to take affirmative steps to even be eligible to recover their property. First, owners must initiate a lawsuit in court, file a claim with the seizing agency or prosecutor, or respond to the government in court. This can be far from straightforward, and it is only the beginning of a lengthy and costly process that stacks the deck against owners every step of the way. With no assurance that such a heavy investment of time and resources will pay off, it should come as little surprise that few owners even try to mount a challenge.
Civil Forfeiture Laws Fail to Protect Property Owners
As the public and lawmakers have increasingly recognized forfeiture’s size, scope and potential for abuse, interest in reform is high. Since the second edition of Policing for Profit, 32 states and the federal government have adopted measures limiting forfeiture or altering its procedures.
Unfortunately, relatively few reforms have tackled the central problems with civil forfeiture laws graded by each edition of Policing for Profit: (1) law enforcement’s financial stake in forfeiture efforts, (2) inadequate protections for innocent owners and (3) standards of proof well below the familiar “beyond a reasonable doubt” required for a criminal conviction. In the past five years, just one state has reduced (not eliminated) law enforcement’s financial incentive for forfeiture and five states have improved innocent owner protections. Seventeen states have raised the standard of proof, added a conviction provision or both.
The most common reforms have increased transparency through improved reporting (25 states). Other reforms have added procedural protections or limits on forfeiture (18 states and Congress) or imposed new limits on local participation in federal equitable sharing (eight states). Though such reforms can be steps in the right direction, much work remains to be done.
To date, no state has matched the reform adopted by New Mexico in 2015.With that reform, New Mexico addressed all three central problems with civil forfeiture: It abolished civil forfeiture, opting instead to rely on criminal forfeiture, and just as important, it directed all forfeiture proceeds—including those from other jurisdictions, such as federal equitable sharing proceeds—to the state’s general fund rather than law enforcement coffers. It also strengthened protections for innocent owners whose property may be caught up in forfeiture proceedings. And, in denying proceeds to state and local agencies, it removed any incentive for law enforcement to circumvent the new state law through federal equitable sharing.
New research indicates New Mexico’s best-in-the-nation reforms have come without any cost to public safety (see “New Research: Eliminating Civil Forfeiture Does Not Increase Crime”). Contrary to claims that abolishing civil forfeiture would worsen crime, an analysis comparing crime rates in New Mexico with those in neighboring states finds no evidence of any negative effect from New Mexico’s reform. These findings suggest other states have little to fear and much to gain from following in New Mexico’s footsteps.
Equitable Sharing Creates a Giant Loophole
Even in states with forfeiture laws that provide relatively strong protections and due process rights, innocent people remain at risk of having their property forfeited. That is because the federal government provides a massive loophole: federal equitable sharing. Equitable sharing allows state and local law enforcement agencies to partner with the federal government to seize and forfeit property under federal law—and receive up to 80% of the proceeds—regardless of state law.
Equitable sharing gives state and local agencies another avenue for forfeiting property and gaining a share of proceeds—one backed by the resources of the federal government. More than that, though, the program enables law enforcement agencies to circumvent their own state’s forfeiture laws in favor of forfeiting property under federal forfeiture laws, which earn a D- for being some of the worst in the country. Thus, forfeiting property through equitable sharing may be especially appealing when a state offers property owners more protections, or makes forfeiture less lucrative, than federal law does.
Proponents argue equitable sharing—and the revenue it generates—is essential for federal, state and local law enforcement to effectively collaborate, especially when it comes to combatting the illegal drug trade. In theory, these forfeitures take the profit out of crime and provide state and local agencies with the resources they need to continually step up their crime-fighting abilities. But recent research finds no evidence that this is actually true. Results from the 2019 study by economist Brian Kelly indicate equitable sharing payments to state and local agencies did not translate into more crimes solved or lower levels of drug use—though they did correspond to fiscal stress, suggesting equitable sharing use increases when the economy turns sour and law enforcement budgets are likely to suffer cuts.
Evidence Suggests Forfeiture Doesn’t Work
Proponents offer two main arguments in support of forfeiture. First, they argue it fights crime by hitting criminals where it hurts—in their wallets—and channels the proceeds into greater law enforcement efforts. Proponents claim that, in taking the profit out of crime, forfeiture is more effective in taking down criminals and cartels than criminal prosecutions alone. Moreover, it supposedly turns criminals’ money into greater funds for law enforcement, which can be used to fight more crime. Second, proponents often claim forfeiture proceeds can be used to compensate crime victims and invest in anti-drug and other community programs. While these arguments may sound reasonable, they are not supported by evidence. Available data call both into question.
Barriers to Forfeiture Reform
Policing for Profit’s grades and empirical findings illustrate the need for further forfeiture reform. Indeed, beyond transparency and mostly modest procedural reforms, meaningful change remains elusive—despite demand from the public and political leaders. Public opinion surveys consistently show sizable majorities oppose current forfeiture practices and support reform. In 2016, both major parties’ platforms endorsed forfeiture reform. And the sheer volume of reform activity in state legislatures over the past five years indicates interest among lawmakers is both widespread and bipartisan. Yet, repeatedly, substantive reform efforts have been stalled or derailed—usually by law enforcement opposition—despite well-documented abuses.
The past five years have seen several ambitious reform efforts founder. Since 2014, federal lawmakers have repeatedly introduced the Fifth Amendment Integrity Restoration or FAIR Act, most recently in June 2020. The bill would eliminate equitable sharing, raise the federal standard of proof, offer owners new procedural protections and direct forfeiture proceeds to a fund controlled by Congress. Prior versions never made it out of committee. Nor did the more modest Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures or DUE PROCESS Act. In 2019, amid a larger appropriations debate, the House of Representatives unanimously approved an amendment to defund part of the equitable sharing program. Unfortunately, the Senate refused to accept that amendment, leaving the program untouched. Much the same thing happened in 2017.
As in Congress, stronger state-level reforms have stalled. South Carolina and Minnesota failed to pass bills that would have adopted New Mexico-style reforms to abolish civil forfeiture and end the financial incentive. (The South Carolina Supreme Court may take this decision out of lawmakers’ hands. See “South Carolina High Court Weighs Forfeiture and the Constitution.”) Lawmakers in Missouri have repeatedly tried—without success—to close the equitable sharing loophole. Bills in Arizona, Hawaii, Oklahoma and Rhode Island have proposed new conviction provisions, among other reforms, including eliminating the financial incentive in Hawaii and Rhode Island. None made it across the finish line. In 2017, Texas lawmakers filed no fewer than 15 forfeiture reform bills, but not one made it to a floor vote.
A common refrain among reform opponents is that the system is not broken, and any incidents of abuse are isolated. Yet extensive reporting has revealed wide-ranging problems, often concerning the very forfeiture programs reform efforts have failed to touch. In 2014, The Washington Post’s “Stop and Seize” series identified thousands of warrantless highway seizures through the federal equitable sharing program. The Greenville News’ “TAKEN” series painstakingly researched three years’ worth of forfeiture cases from across South Carolina, finding hundreds of forfeitures with no conviction or arrest—with most of the proceeds going to law enforcement. As part of the Pulitzer Center’s own “TAKEN” series, St. Louis Public Radio produced an in-depth series detailing how Missouri police use equitable sharing to seize cash, circumvent state law and keep the proceeds. Also as part of the Pulitzer series, The Texas Tribune published exposés about Texas’ forfeiture practices. A 2018 report by Hawaii’s legislative auditor revealed financial mismanagement and other problems in the state’s forfeiture program. A news investigation likewise revealed problems in Rhode Island.
Despite such reporting, reform typically falls victim to well-organized law enforcement opposition, whether overt or behind the scenes. Efforts in Texas faced “strident opposition from law enforcement and local prosecutors,” while a “quiet lobbying campaign by law enforcement” stymied reform in Missouri. Opponents in Oklahoma criticized reform as “an affront to law enforcement.”In Minnesota, a lawmaker who is also a county prosecutor converted a bill abolishing civil forfeiture into a study committee. In a move hailed by law enforcement, the committee recommended weak reforms that failed to address the inherent problems with civil forfeiture. Hawaii’s bill passed both houses unanimously but was vetoed by the governor in a move urged by local prosecutors.
Occasionally, reform opponents admit that funding concerns drive their resistance. As the executive director of the South Carolina Sheriff’s Association told The Greenville News, if agencies cannot keep forfeiture proceeds, “[W]hat is the incentive to go out and make a special effort?” His question echoes the concerns of the Wisconsin law enforcement officials who fended off a proposal to end their practice of keeping a cut of proceeds to cover costs. Similarly, a deputy sheriff cautioned Minnesota lawmakers that law enforcement needs forfeiture funds for critical purchases. More recently, an Arizona lawmaker defended her vote against a 2020 reform package—despite being aware of abuses—as a way to avoid disrupting needed revenue during the COVID-19 pandemic.
Reformers insist, however, that they are not against law enforcement or adequately funding agencies. Instead, they favor due process and fear reliance on forfeiture funds can erode public confidence in police. As a sponsor of recent reform bills in Minnesota put it, “We have to properly fund local law enforcement. But it’s the Legislature that should be doing the appropriation.”
Conclusion and Recommendations
Civil forfeiture is a vast national phenomenon and a fundamental threat to property rights and due process. And while it can be lucrative for law enforcement, there is little evidence to suggest forfeiture effectively meets policy goals of fighting crime or supporting victims and community programs. There is, however, substantial evidence of abuse. Civil forfeiture laws stack the deck against property owners, compromising due process and inevitably sweeping up many innocents. And with transparency lacking, forfeiture activity typically happens outside public view, enabling questionable tactics and spending.
Recent years have seen greater attention and action from lawmakers, but most reforms have been partial measures, leaving civil forfeiture’s core deficiencies largely intact. Instead, state and federal lawmakers should pursue more fundamental change.
First, states and the federal government should end civil forfeiture. Its two-track system that separates a person’s criminal culpability from their loss of property is inherently abusive. If government is going to forfeit a person’s property, it should do so only as part of criminal proceedings with the full panoply of due process protections afforded the accused—in other words, through the one-track process of criminal forfeiture. Lawmakers should be wary of half-measures, such as so-called conviction requirements, that maintain the two-track system and fail to help most property owners caught up in forfeiture proceedings.
Second, states and the federal government should eliminate the perverse financial incentive by directing proceeds to neutral funds, beyond the control of law enforcement. Enabling agencies to self-fund through forfeiture undermines constitutional and democratic controls and accountability mechanisms, including the separation of powers, while incentivizing the pursuit of property at the expense of justice.
Third, state and federal lawmakers should provide robust protections for innocent third-party owners, making it quick and easy for owners to secure the return of wrongfully seized property—and putting the burden on the government to show owners’ personal culpability in order to forfeit.
Fourth, the federal government should abolish equitable sharing, and until it does, states should prohibit their law enforcement agencies from participating in the program. Evidence indicates equitable sharing is not effective as a crime-fighting tool and is prone to abuse—and encourages law enforcement to circumvent state forfeiture law.
Finally, states and the federal government should insist on full transparency and accountability for all forfeiture activity.
New Mexico adopted this reform program in 2015 and, contrary to opponents’ predictions, has seen no increase in crime. New Mexico’s experience demonstrates that strong protections for property rights and due process are achievable without compromising public safety. The only way to protect against unjust seizures and forfeitures and to ensure law enforcement pursues justice, not property, is to end civil forfeiture and the financial incentive that fuels it.
First Amended Complaint at ¶¶ 105–148, Ingram, et al. v. Cnty. of Wayne, No. 2:20-cv-10288-AJT-EAS (E.D. Mich. May 11, 2020), ECF No. 12, https://ij.org/wp-content/uploads/2020/02/Amended-Complaint.pdf↑[Back to Text]
Complaint, Brown, et al. v. Transportation Sec. Admin., et al., No. 2:05-mc-02025 (W.D. Pa. Jan. 15, 2020), ECF No. 58, https://ij.org/wp-content/uploads/2020/01/Pittsburgh-Airport-Forfeiture-Complaint.pdf; Ove, T. (2020, Jan. 15). Father and daughter sue feds over $82,000 seized at Pittsburgh International. Pittsburgh Post-Gazette. https://www.post-gazette.com/news/crime-courts/2020/01/15/Father-and-daughter-sue-TSA-DEA-over-seized-82-000-pittsburgh-international-airport/stories/202001150141↑[Back to Text]
Claim for Property and Verified Answer, State of Oklahoma v. $53,234 Cash, No. CV-2016-66 (15th Jud. District of Oklahoma, Muskogee Co., Apr. 22, 2016), https://ij.org/wp-content/uploads/2016/04/verified-answer.pdf; Ingraham, C. (2016, Apr. 25). How police took $53,000 from a Christian band, an orphanage and a church. The Washington Post. https://www.washingtonpost.com/news/wonk/wp/2016/04/25/how-oklahoma-cops-took-53000-from-a-burmese-christian-band-a-church-in-omaha-and-an-orphanage-in-thailand/↑[Back to Text]
Seal, D. (2020, Mar. 4). Tennessee forfeiture laws have strayed away from original civil design. Tennessean. https://www.tennessean.com/story/opinion/2020/03/04/calling-reform-tennessees-appalling-f/4953796002; Freivogel, W. H. (2019a, Feb. 18). No drugs, no crime and just pennies for school: How police use civil asset forfeiture. St. Louis Public Radio. https://news.stlpublicradio.org/government-politics-issues/2019-02-18/no-drugs-no-crime-and-just-pennies-for-school-how-police-use-civil-asset-forfeiture; NewsChannel 5 Nashville. (2014, July 15). Timeline: Policing for profit. https://www.newschannel5.com/news/newschannel-5-investigates/policing-for-profit/timeline-policing-for-profit; Williams, P. (2011, May 16). Are middle Tennessee police profiting off drug trade? NewsChannel5 Nashville. https://www.newschannel5.com/news/newschannel-5-investigates/policing-for-profit/are-middle-tennessee-police-profiting-off-drug-trade; Kelly, B. D. (2019). Fighting crime or raising revenue? Testing opposing views of forfeiture. Arlington, VA: Institute for Justice. https://ij.org/report/fighting-crime-or-raising-revenue/; Preciado, M., & Wilson, B. J. (2017). The welfare effects of civil forfeiture. Review of Behavioral Economics, 4(2), 153–179.↑[Back to Text]
First Amended Complaint, Ingram, et al. v. Cnty. of Wayne, supra note 1, at ¶ 114.↑[Back to Text]
Arnold, T. (2019, Mar. 28). Wayne County doubling down on forfeiture as legislature moves to reform it. Michigan Capitol Confidential. https://www.michigancapitolconfidential.com/wayne-county-doubling-down-on-forfeiture-as-legislature-moves-to-reform-it↑[Back to Text]
Leonard v. Texas, cert. denied, 137 S. Ct. 837, 197 L. Ed 2d 474 (2017) (Thomas, J., concurring), https://www.supremecourt.gov/opinions/16pdf/16-122_1b7d.pdf ↑[Back to Text]
Initial Brief of Respondents, Richardson v. $20,771.00 U.S. Currency, Appellate Case No. 2020-000092 (S.C. July 15, 2020) (on appeal from Horry Co. Ct. of Com. Pleas, Case No. 2017-CP-26-07411), https://ij.org/wp-content/uploads/2020/07/Initial-Brief-of-Respondents-FINAL-TO-FILE-07.15.20-IJ115663xA6322.pdf; Notice of Pending Forfeiture, In re U.S. Currency $31,780; 2012 Volkswagen Jetta, VIN 3VW3L7AJ0CM366141, Civ. No. CV-2016-00217 (Ariz. Super. Ct., Navajo Cnty., May 23, 2016).↑[Back to Text]
See, e.g., Leonard v. Texas, cert. denied, 137 S. Ct. 837, 197 L. Ed 2d 474 (2017) (Thomas, J., concurring), https://www.supremecourt.gov/opinions/16pdf/16-122_1b7d.pdf and Ellis, M. (2019, Feb. 10). From pirates to kingpins, the strange legal history of civil forfeiture. The Greenville News. https://www.greenvilleonline.com/in-depth/news/taken/2019/02/10/civil-forfeiture-history-pirate-privateers-organized-crime-drug-kingpins/2458836002/↑[Back to Text]
Authors’ tabulation of unique values within the “Statute Violation Code” variable in the U.S. Department of Justice’s Consolidated Assets Tracking System, updated April 3, 2020, https://www.justice.gov/afp/freedom-information-act. See also U.S. Department of Justice Criminal Division Money Laundering and Asset Recovery Section. (2019a). Asset forfeiture and money laundering statutes 2019. https://www.justice.gov/criminal-mlars/file/1146911/download. Most federal offenses giving rise to seizure sound serious, but agencies can interpret them broadly. For example, U.S. Customs and Border Protection seized Gerardo Serrano’s truck, claiming he used it to illegally transport materials of war, a violation of 22 U.S.C. § 401. CBP was referring to five bullets Gerardo forgot were in the truck’s center console. No guns or other weapons were in the vehicle. Complaint, Serrano v. U.S. CBP, et al., Civ. No. 2:17-cv-00048 (W.D. Tex. Sept. 6, 2017), ECF No. 1, https://ij.org/wp-content/uploads/2017/09/As-Filed-Complaint-IJ090887xA6322.pdf. See also “Forfeiture Creates Pressure to Wheel and Deal or Walk Away.” Another federal offense giving rise to forfeiture is failing to file paperwork when entering or leaving the country with $10,000 or more in cash or other currency. The law is intended to combat international money laundering, but innocent people can easily run afoul of it. Federal data reveal that when U.S. Customs and Border Protection and other Department of Homeland Security agencies seize currency for reporting violations at the nation’s airports, other criminal activity, such as money laundering or drug trafficking, is rarely alleged. See, e.g., McDonald, J. (2020). Jetway robbery? Homeland security and cash seizures at airports. Arlington, VA: Institute for Justice. https://ij.org/report/jetway-robbery/. At the state level, the crimes giving rise to forfeiture can be quite diverse. For example, in Alabama, people who hunt illegally at night can lose their cars. Ala. Code § 9-11-252.1. In Alaska, planes can be forfeited if used to illegally transport alcohol to municipalities. Alaska Stat. § 04.16.220(a)(3)(C).↑[Back to Text]
Estep, T. (2018, July 19). Feds want reimbursement for Gwinnett sheriff’s $70k muscle car. The Atlanta Journal-Constitution. https://bit.ly/3m4ThFw↑[Back to Text]
Blau, R. (2019, Apr. 3). High-flying Cy: How Manhattan DA Vance spent $250k on travel and food. New York Magazine. https://nymag.com/intelligencer/2019/04/how-manhattan-da-cy-vance-spent-usd250k-on-travel-and-food.html↑[Back to Text]
Binion, B. (2019, Aug. 16). Iowa cops buy an armored vehicle with $300,000 in asset forfeiture funds. Reason. https://reason.com/2019/08/16/iowa-cops-buy-an-armored-vehicle-with-300000-in-asset-forfeiture-funds/↑[Back to Text]
Timbs v. Indiana, 139 S. Ct. 682 (2019), https://ij.org/wp-content/uploads/2018/01/Timbs-v.-Indiana-17-1091_5536.pdf; State v. Timbs, 134 N.E.3d 12 (Ind. 2019), https://ij.org/wp-content/uploads/2018/01/Document.pdf. See also “Curbing ‘Excessive’ Forfeitures.”↑[Back to Text]
Desilver, D., Lipka, M., & Fahmy, D. (2020, June 3). 10 things we know about race and policing in the U.S. FactTank. https://www.pewresearch.org/fact-tank/2020/06/03/10-things-we-know-about-race-and-policing-in-the-u-s/; Solomon, D. (2016, Sept. 1). The intersection of policing and race. Washington, DC: Center for American Progress. https://www.americanprogress.org/issues/race/reports/2016/09/01/143357/the-intersection-of-policing-and-race/↑[Back to Text]
See, e.g., Cary, N., & Ellis, M. (2019, Jan. 27). 65% of cash seized by SC police comes from black men. Experts blame racism. The Greenville News. https://www.greenvilleonline.com/story/news/taken/2019/01/27/south-carolina-racism-blamed-civil-forfeiture-black-men-taken-exclusive-investigation/2459039002/↑[Back to Text]
Makowsky, M. D., Stratmann, T., & Tabarrok, A. (2019). To serve and collect: The fiscal and racial determinants of law enforcement. The Journal of Legal Studies, 48(1), 189–216. See also Nicholson-Crotty, S., Nicholson-Crotty, J., Li, D., & Mughan, S. (2020). Race, representation, and assets forfeiture. International Public Management Journal, 1–20. The latter study finds a significant relationship between minority population share and forfeiture revenue.↑[Back to Text]
See, e.g., Leonard v. Texas, cert. denied, 137 S. Ct. 837, 197 L. Ed 2d 474 (2017) (Thomas, J., concurring), https://www.supremecourt.gov/opinions/16pdf/16-122_1b7d.pdf; Ciaramella, C. J. (2017a, June 13). Poor neighborhoods hit hardest by asset forfeiture in Chicago, data shows. Reason. https://reason.com/2017/06/13/poor-neighborhoods-hit-hardest-by-asset/; Honchariw, D. (2017). Who does civil asset forfeiture target most? A review of LVMPD’s forfeiture activities for fiscal year 2016. Las Vegas, NV: Nevada Policy Research Institute. http://www.npri.org/docLib/20170726_CompleteForfeitureReport.pdf; Drug Policy Alliance. (2015). Above the law: An investigation of civil asset forfeiture in California. Los Angeles, CA. https://www.drugpolicy.org/sites/default/files/Drug_Policy_Alliance_Above_the_Law_Civil_Asset_Forfeiture_in_California.pdf; American Civil Liberties Union of Pennsylvania. (2015). Guilty property: How law enforcement takes $1 million in cash from innocent Philadelphians every year—and gets away with it. https://www.aclupa.org/en/publications/guilty-property-how-law-enforcement-takes-1-million-cash-innocent-philadelphians-every↑[Back to Text]
Kelly, 2019; U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division. (2017). Review of the Department’s oversight of cash seizure and forfeiture activities. https://oig.justice.gov/reports/2017/e1702.pdf. See also “Evidence Suggests Forfeiture Doesn’t Work” and “New Research: Eliminating Civil Forfeiture Does Not Increase Crime.”↑[Back to Text]