Civil Forfeiture Reforms on the State-Level

In 2014, IJ launched its End Forfeiture initiative, an effort focused on radically reforming—or altogether ending—civil forfeiture laws throughout the country. Through this initiative, IJ fights against civil forfeiture in statehouses, courts of law and courts of public opinion.

Reforming civil forfeiture is an issue that crosses party lines. Since IJ launched its End Forfeiture initiative, over 250 editorials have called for reform. In 2016, the party platforms for both the national Republican and Democratic parties endorsed forfeiture reform. And polls have repeatedly shown that the overwhelming majority of Americans oppose civil forfeiture.

Today, three states—North Carolina, New Mexico and Nebraska—have abolished civil forfeiture entirely.

Since 2014, 24 states and the District of Columbia have reformed their civil forfeiture laws:

  1. Minnesota (the state enacted reforms in both 2014 and 2017)
  2. Michigan (the state enacted reforms in both 2015 and 2017)
  3. Georgia
  4. Utah (the state enacted reforms in both 2015 and 2017)
  5. Indiana
  6. Montana
  7. Nevada
  8. New Mexico
  9. Wyoming
  10. Florida
  11. Virginia
  12. Tennessee
  13. Nebraska
  14. Maryland
  15. New Hampshire
  16. Delaware
  17. California
  18. Ohio
  19. Mississippi
  20. Arizona
  21. Iowa
  22. Colorado
  23. Pennsylvania
  24. Connecticut

Fourteen states now require a criminal conviction for most or all forfeiture cases:

  1. North Carolina
  2. Missouri (enacted in 1993)
  3. California (enacted in 1994) (excluding cash over $40,000)
  4. Oregon (enacted in 2000)
  5. Minnesota
  6. Vermont
  7. Montana
  8. Nevada
  9. New Mexico
  10. Nebraska
  11. New Hampshire
  12. Ohio (excluding property valued at over $15,000)
  13. Iowa (excluding property valued at over $5,000)
  14. Connecticut

In a similar vein, Utah bans forfeiture for cases where the claimants are found not guilty and are acquitted.

Seven states and the District of Columbia have passed anti-circumvention legislation to close the equitable-sharing loophole:

“Beginning October 1, 2018, deposit in the General Fund of the District government the currency and proceeds received by any agency of the District government from any state or federal agency pursuant to a multiple-jurisdiction or shared forfeiture program.”

[…]

“Beginning October 1, 2018, the District shall not refer seized property to a federal agency seeking the adoption by the federal agency of the seized property. Nothing in this title shall be construed to prohibit the federal government, or any of its agencies, from seeking federal forfeiture.”

“A. A law enforcement agency shall not directly or indirectly transfer seized property to a federal law enforcement authority or other federal agency unless:

(1) the value of the seized property exceeds fifty thousand dollars ($50,000), excluding the potential value of the sale of contraband; and

(2) the law enforcement agency determines that the criminal conduct that gave rise to the seizure is interstate in nature and sufficiently complex to justify the transfer of the property; or

(3) the seized property may only be forfeited under federal law.

B. The law enforcement agency shall not transfer property to the federal government if the transfer would circumvent the protections of the Forfeiture Act that would otherwise be available to a putative interest holder in the property.”

“No law enforcement agency or prosecuting authority of this state or its political subdivisions shall transfer or refer any money or property to a federal law enforcement authority or other federal agency by any means unless:

(1) The money or property seized exceeds twenty-five thousand dollars in currency or value;

(2) The money or property is physically seized by a federal agent who is employed by the federal government; or

(3) The person from whom the money or property was seized is the subject of a federal prosecution or the facts and circumstances surrounding the money or property seized are the subject of a federal prosecution.”

“A seizing authority or prosecuting authority may not directly or indirectly transfer seized property to a federal law enforcement authority or agency unless:

(1) a criminal case related to the seizure is prosecuted in the federal court system under federal law; or (2) the owner of the property consents to the forfeiture;

(3) the property is cash of at least $50,000; or

(4) the seizing authority transfers the property to a federal authority under a federal seizure warrant issued to take custody of assets originally seized under state law.”

“(a) State or local law enforcement authorities shall not refer or otherwise transfer property seized under state law authorizing the seizure of property to a federal agency seeking the adoption of the seized property by the federal agency for proceeding with federal forfeiture under the federal Controlled Substances Act. Nothing in this section shall be construed to prohibit the federal government, or any of its agencies, from seizing property, seeking forfeiture under federal law, or sharing federally forfeited property with state or local law enforcement agencies when those state or local agencies work with federal agencies in joint investigations arising out of federal law or federal joint task forces comprised of federal and state or local agencies. Nothing in this section shall be construed to prohibit state or local law enforcement agencies from participating in a joint law enforcement operation with federal agencies.

(b) Except as provided in this subdivision and in subdivision (c), a state or local law enforcement agency participating in a joint investigation with a federal agency shall not receive an equitable share from the federal agency of all or a portion of the forfeited property or proceeds from the sale of property forfeited pursuant to the federal Controlled Substances Act unless a defendant is convicted in an underlying or related criminal action of an offense for which property is subject to forfeiture as specified in Section 11470 or Section 11488, or an offense under the federal Controlled Substances Act that includes all of the elements of an offense for which property is subject to forfeiture as specified in Sections 11470 and 11488. In any case in which the forfeited property is cash or negotiable instruments of a value of not less than forty thousand dollars ($40,000) there shall be no requirement of a criminal conviction as a prerequisite to receipt by state or local law enforcement agencies of an equitable share from federal authorities.

(c) If the defendant has been arrested and charged in an underlying or related criminal action or proceeding for an offense described in subdivision (b) and willfully fails to appear as required, intentionally flees to evade prosecution, or is deceased, there shall be no requirement of a criminal conviction as a prerequisite to receipt by state or local law enforcement agencies of an equitable share from federal authorities.”

“A law enforcement agency or prosecuting authority shall not directly or indirectly transfer or refer any property seized by the agency or authority to any federal law enforcement authority or other federal agency for purposes of forfeiture under federal law unless the value of the seized property exceeds one hundred thousand dollars, excluding the potential value of the sale of contraband, or the property is being transferred or referred for federal criminal forfeiture proceedings.”

“i. The seizing agency or the attorney for the state may not enter into any agreement to transfer or refer seized property to a federal agency for the purpose of forfeiture if the property was seized pursuant to an investigation that either:

1. Did not involve a federal agency.

2. Involves a violation of a state law and no violation of a federal law is alleged.

j. Property that is seized in a joint investigation may not be transferred or referred to a federal agency for the purpose of forfeiture unless the gross estimated value of the seized property is more than seventy‑five thousand dollars.

k. This section does not prohibit:

1. The federal government or any of its agencies from seizing property, seeking forfeiture pursuant to federal law and sharing property that is forfeited pursuant to federal law with a state or local law enforcement agency that participates in a joint investigation.

2. A state or local law enforcement agency from participating in a joint investigation.

l. For the purposes of this section, ‘joint investigation’ means an investigation in which a state or local law enforcement agency directly participates in the investigation or enforcement of a federal criminal law with a federal agency and the investigation or enforcement results in a seizure.”

  • Colorado “(1) A seizing agency or participant in any joint task force or other multijurisdictional collaboration shall accept payment or distribution from a federal agency of all or a portion of any forfeiture proceeds resulting from adoption or a joint task force or other multijurisdictional collaboration only if the aggregate net equity value of the property and currency seized in a case is in excess of fifty thousand dollars and a forfeiture proceeding is commenced by the federal government and relates to a filed criminal case.(2) Subsection (1) of this section shall not be construed to restrict seizing agencies from collaborating with a federal agency to seize property that the seizing agency has probable cause to believe is the proceeds or instruments of a crime through an intergovernmental joint task force.”

Pennsylvania has also banned “adoptive” seizures (the subject of orders by Attorneys General Eric Holder and Jeff Sessions), though they accounted for only four percent of all seizures and proceeds through under equitable sharing.

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