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The Federal Government earns a D- for its civil forfeiture laws:

  • Low bar to forfeit and no conviction required
  • Poor protections for innocent third-party property owners
  • 100% of forfeiture proceeds go to federal law enforcement

Federal Forfeiture Laws

The federal government’s civil forfeiture laws earn a D-, setting a terrible example that, unfortunately, many states have followed. Regardless of any protections afforded under states’ laws, federal law poses serious risks to property owners nationwide. In order to forfeit property, the government need only tie it to a crime by a preponderance of the evidence—a low standard. Making matters worse, innocent third-party property owners bear the burden of proving that they had nothing to do with the alleged criminal activity that led to the seizure of their property. Worst of all, federal law enforcement agencies have a considerable incentive to seize property: 100 percent of forfeiture proceeds go to federal law enforcement.

The departments of Justice and the Treasury are required to submit annual audited accounting reports of their forfeiture funds to Congress. These reports are published online, but they provide only basic accounting details of the funds and do not disaggregate the data in a way that would allow for a more detailed analysis of federal forfeiture. The Department of Justice tracks its forfeitures more comprehensively through an internal database called the Consolidated Assets Tracking System. The Institute for Justice obtained CATS data by filing a federal Freedom of Information Act request with the DOJ. While this system provides more detailed records than do those in many states, it is not publicly available online and its thousands of variables and hundreds of tables make it extremely difficult, if not impossible, for the average citizen to navigate. Requests made to the Treasury Department for its forfeiture tracking database, the Seized Assets and Case Tracking System, or SEACATS, had not been fulfilled by the time this report went to print.

The federal government’s use of forfeiture has exploded in recent years, increasing by more than 1,000 percent between fiscal years 2001 and 2014. During that period, deposits into the forfeiture funds of the DOJ and Treasury totaled nearly $29 billion. Measuring the funds’ net assets provides a more stable picture of the volume of federal forfeiture accounts from year to year, accounting for proceeds carried over from previous years as well as for obligations paid out from the funds, such as equitable sharing payments made to states. Net assets in the DOJ and Treasury forfeiture funds increased by 485 percent, from $763 million in fiscal year 2001 to almost $4.5 billion in fiscal year 2014.

Show Federal Law Sources
Standard of proof

Preponderance of the evidence.

18 U.S.C. § 983(c).

Innocent owner burden

Owner.

18 U.S.C. § 983(d).

Profit incentive

100 percent.

18 U.S.C. § 981(e); see also United States v. Pescatore, 637 F.3d 128, 137 (2d Cir. 2011).

Reporting requirements

The Department of Justice and Department of the Treasury are required to compile annual forfeiture reports and publish them online.

28 U.S.C. § 524(c)(6); 31 U.S.C. § 9705(f).

DOJ Assets Forfeiture Fund Annual Financial Statements: http://www.justice.gov/afp/annual-financial-statements

Treasury Forfeiture Fund Accountability Reports: http://www.treasury.gov/resource-center/terrorist-illicit-finance/Asset-Forfeiture/Pages/annual-reports.aspx

Federal Forfeiture Data

Deposits to Federal Forfeiture Funds

Fiscal Year DOJ Treasury Total
2001 $406,800,000 $65,745,000 $472,545,000
2002 $423,600,000 $113,072,000 $536,672,000
2003 $486,000,000 $194,854,000 $680,854,000
2004 $543,100,000 $271,565,000 $814,665,000
2005 $595,500,000 $258,636,000 $854,136,000
2006 $1,124,900,000 $214,651,000 $1,339,551,000
2007 $1,515,700,000 $252,192,000 $1,767,892,000
2008 $1,286,000,000 $464,762,000 $1,750,762,000
2009 $1,444,568,000 $516,736,000 $1,961,304,000
2010 $1,573,330,000 $959,767,000 $2,533,097,000
2011 $1,737,965,000 $817,154,000 $2,555,119,000
2012 $4,314,710,000 $397,002,000 $4,711,712,000
2013 $2,012,249,000 $1,612,361,000 $3,624,610,000
2014 $4,467,127,000 $736,531,000 $5,203,658,000
Total $21,931,549,000 $6,875,028,000 $28,806,577,000

Federal Forfeiture Funds Net Assets

Fiscal Year DOJ Treasury Total
2000 $536,500,000 NA NA
2001 $525,800,000 $237,300,000 $763,100,000
2002 $485,200,000 $173,000,000 $658,200,000
2003 $528,400,000 $177,231,000 $705,600,000
2004 $427,900,000 $194,103,000 $622,000,000
2005 $448,000,000 $255,307,000 $703,300,000
2006 $651,100,000 $236,757,000 $887,900,000
2007 $734,200,000 $361,387,000 $1,095,600,000
2008 $1,000,700,000 $426,779,000 $1,427,500,000
2009 $1,425,883,000 $594,513,000 $2,020,396,000
2010 $1,687,400,000 $986,071,000 $2,673,471,000
2011 $1,760,544,000 $1,452,922,000 $3,213,466,000
2012 $1,620,387,000 $1,555,895,000 $3,176,282,000
2013 $1,855,767,000 $2,486,628,000 $4,342,395,000
2014 $2,560,848,000 $1,903,622,000 $4,464,470,000

Sources: DOJ Assets Forfeiture Fund Annual Financial Statements; Treasury Forfeiture Fund Accountability Reports.

The Federal Government paid out over $4.7 billion to state and local law enforcement agencies through the Department of Justice’s equitable sharing program from 2000 to 2013.

Federal Equitable Sharing

Forfeitures conducted under federal equitable sharing programs have also escalated considerably in recent years. Between the 2000 and 2013 calendar years, the Department of Justice paid out more than $4.7 billion in equitable sharing proceeds to state and local law enforcement agencies, including those in U.S. territories. DOJ rules require that these funds be spent by law enforcement agencies for law enforcement purposes—even if state law directs forfeiture proceeds to a neutral fund, such as a state’s general fund or school fund. Annual DOJ equitable sharing payments have grown from approximately $199 million in 2000 to over $643 million in 2013—an increase of 224 percent. The large majority of these payments—82 percent—were the proceeds of joint task forces and investigations. These types of forfeitures were left largely untouched by former Attorney General Holder’s policy change intended to reduce equitable sharing, suggesting that the equitable sharing program is likely to continue relatively unhindered. Finally, from 2000 to 2013, the Treasury Department paid out over $1.1 billion in equitable sharing proceeds.

View Local Law Enforcement Data
YearDOJ
(calendar years)
Treasury
(fiscal years)
2000 $198,739,307 $85,129,000
2001 $220,353,479 $60,277,000
2002 $161,287,179 $50,844,000
2003 $221,984,964 $41,962,000
2004 $230,703,987 $48,123,000
2005 $269,262,768 $72,731,000
2006 $325,669,954 $66,558,000
2007 $443,802,375 $60,192,000
2008 $401,878,933 $90,198,000
2009 $380,865,399 $89,756,000
2010 $416,862,701 $129,102,000
2011 $437,096,583 $79,533,000
2012 $381,504,806 $137,627,000
2013 $643,317,075 $123,765,000
Total $4,733,329,509 $1,135,797,000
Average Per Year $338,094,965 $81,128,357

DOJ Equitable Sharing,
Adoptive vs. Joint, 2000-2013

Adoptions
Joint Task Forces and Investigations
Seizures
Proceeds

DOJ Equitable Sharing Proceeds, 2000-2013

Sources: Institute for Justice analysis of DOJ forfeiture data obtained by FOIA; Treasury Forfeiture Fund Accountability Reports. Data include civil and criminal forfeitures. Because DOJ figures represent calendar years and Treasury figures cover fiscal years, they cannot be added.

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