Appendix B: Civil Forfeiture Law Citations and Other References

Alaska

Standard of proof

Government must show probable cause for seizure, and the owner must show that the property is not forfeitable by a preponderance of the evidence.

Resek v. State, 706 P.2d 288, 290–91 (Alaska 1985); see also Alaska Stat. §§ 17.30.110, .114(a).

Innocent owner burden

Owner.

Resek v. State, 706 P.2d 288, 291 (Alaska 1985); see also Alaska Stat. § 17.30.110(4)(A)–(B) (placing burden on owner with respect to any conveyance, like an airplane or car).

Profit incentive

100 percent if the property is worth $5,000 or less and something other than money, and up to 75 percent in all other cases.

Alaska Stat. § 17.30.112(c); see also id. § 17.30.122.

Reporting requirements

None.

Alabama

Standard of proof

Reasonable satisfaction, which is akin to preponderance of the evidence.

Ex parte McConathy, 911 So. 2d 677, 681, 687–88 (Ala. 2005) (overturning forfeiture on grounds that mere suspicion property was involved in a crime does not meet the “reasonable satisfaction” standard); see also Alabama Evidence § 3:29 (3d ed. 2014) (explaining that “reasonable satisfaction” is equivalent to the preponderance standard).

Innocent owner burden

The government bears the burden of proof when an owner claims an interest in real property (for example, a home).  An owner bears the burden in all other cases.

Ala. Code § 20-2-93(h).

Profit incentive

100 percent.

Ala. Code § 20-2-93(e).

Reporting requirements

None.

Other sources

Sallah, M., O’Harrow, R., Jr., Rich, S., Silverman, G., Chow, E., & Mellnik, T. (2014, September 6). Stop and seize. The Washington Post. Retrieved from http://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/.

Arkansas

Standard of proof

Preponderance of the evidence.

Ark. Code Ann. § 5-64-505(g)(5)(B)(i), (h)(1).

Innocent owner burden

Owner.

Ark. Code Ann. § 5-64-505(a)(4)(B), (a)(6)(B), (a)(8)(A).

Profit incentive

80 percent of the first $250,000 of each forfeiture goes to police and prosecutors and the remaining 20 percent goes to the state Crime Lab Equipment Fund. For forfeitures of more than $250,000, the balance in excess of that figure goes to the Special State Assets Forfeiture Fund.

Ark. Code Ann. § 5-64-505(h)–(i); see also Ark. Op. Att’y. Gen. No. 99-282.

Reporting requirements

Law enforcement agencies and prosecuting attorneys must submit reports of seizures and final disposition to the Arkansas Drug Director, which maintains the Asset Seizure Tracking System database.

Ark. Code Ann. § 5-64-505(f)(2–4), (i)(2)(B).

These reports are subject to audit by the Legislative Joint Auditing Committee, which produces an annual report of seizures.

Ark. Code Ann. § 10-4-417.

http://www.legaudit.state.ar.us/#search

Arizona

Standard of proof

Preponderance of the evidence.

Ariz. Rev. Stat. § 13-4311(M).

Innocent owner burden

Owner.

Ariz. Rev. Stat. §§ 13-4304(4)–(5), 13-4311(M).

Profit incentive

100 percent.

Ariz. Rev. Stat. §§ 13-4315, 13-2314.01.

Reporting requirements

Law enforcement agencies are required to file quarterly forfeiture reports with the Criminal Justice Commission, which must aggregate those reports and submit them to the Legislature.

Ariz. Rev. Stat. § 13-2314.01(F)–(H).

http://www.azcjc.gov/ACJC.Web/finance/ricomain.aspx

Other sources

Keller, T., Simpson, D., & Carpenter, D. M. (2012). Arizona’s profit incentive in civil forfeiture: Dangerous for law enforcement; dangerous for Arizonans. Tempe, AZ: Institute for Justice. Retrieved from http://www.ij.org/images/pdf_folder/private_property/forfeiture/az-forfeiture-report.pdf.

California

Standard of proof

Clear and convincing evidence for cash or cash equivalents of $25,000 or more; beyond a reasonable doubt—and a criminal conviction—for all other property, including real property.

Cal. Health & Safety Code § 11488.4(i); see also People v. $9,632.50 U.S. Currency, 75 Cal. Rptr. 2d 125, 128 n.4 (Ct. App. 1998) (saying the standard of proof “in this case” for cash worth less than $25,000 is beyond a reasonable doubt).

Innocent owner burden

Government.

Cal. Health & Safety Code § 11488.5(d).

Profit incentive

66.25 percent (55.25 percent to police, 10 percent to prosecutors, 1 percent to a fund controlled by prosecutors).

Cal. Health & Safety Code § 11489(b)(2).

Reporting requirements

The Attorney General is required to compile annual aggregate forfeiture reports using data provided by counties.

Cal. Health & Safety Code § 11495(c)–(e).

http://oag.ca.gov/publications

Other sources

Drug Policy Alliance. (2015). Above the law: An investigation of civil asset forfeiture in California. Los Angeles, CA: Drug Policy Alliance. Retrieved from http://www.drugpolicy.org/sites/default/files/Drug_Policy_Alliance_Above_the_Law_Civil_Asset_Forfeiture_in_California.pdf.

Colorado

Standard of proof

Clear and convincing evidence.

Colo. Rev. Stat. §§ 16-13-307(1.7)(c) (public nuisance), 16-13-505(1.7)(c) (contraband), 16-13-509 (currency), 18-17-106(11) (racketeering).

Innocent owner burden

Government.

Colo. Rev. Stat. §§ 16-13-303(5.1)(a), (5.2)(c), 16-13-504(2.1)(a), (2.2)(c).

Profit incentive

50 percent.

Colo. Rev. Stat. §§ 16-13-311(3)(a)(VII), 16-13-506(1), 18-17-106(2)(d).

NB: This restriction does not apply to funds received through federal equitable sharing.
Colo. Rev. Stat. § 16-13-601.

Reporting requirements

District attorneys are required to file annual forfeiture reports with the Department of Local Affairs.

Colo. Rev. Stat. § 16-13-701.

Connecticut

Standard of proof

Clear and convincing evidence.

Conn. Gen. Stat. §§ 54-36h(b), 54-36p(b).

Innocent owner burden

Government.

Conn. Gen. Stat. § 54-36h(b)–(c); see, e.g., State v. One 2002 Chevrolet Coupe, No. CV2200243, 2003 Conn. Super. LEXIS 458, at *8–9, 2003 WL 824266 (Conn. Super. Ct. Jan. 23, 2003) (holding innocent owner could recover her property because state failed to prove by clear and convincing evidence that she knew about her son’s illegal activities).

Profit incentive

69.5 percent (59.5 percent to police, 10 percent to prosecutors), except in cases of sexual exploitation, prostitution and human trafficking, when 100 percent of proceeds go to a victims’ compensation fund.

Conn. Gen. Stat. §§ 54-36i(c), -36p(f).

Reporting requirements

Seizing agencies must maintain an inventory of seized property.

Conn. Gen. Stat. § 54-36a(b)(1).

District of Columbia

Standard of proof

Preponderance of the evidence (general rule); clear and convincing evidence (motor vehicles, real property and up to $1,000 in currency).

If the property is the primary residence of the owner, an owner of the property must be convicted of the offense giving rise to forfeiture.

D.C. Code § 41-308(d)(1), (4).

Innocent owner burden

Government.

D.C. Code §§ 41-302(b), 41-308(d)(1).

Profit incentive

No profit incentive. All currency and proceeds from sales of forfeited property must be deposited in the general fund.

D.C. Code § 41-310(a)(2).

Reporting requirements

The attorney general and Metropolitan Police Department are required to create aggregate forfeiture reports and will be required to publish them on their websites beginning January 1, 2016.

D.C. Code § 41-312.

Other sources

D.C. Code § 41-306 (requiring a prompt hearing when property is seized).

Delaware

Standard of proof

Government must show probable cause, at which point a rebuttable presumption in favor of forfeiture arises, which an owner can rebut by a preponderance of the evidence.

Del. Code Ann. tit. 16, § 4784(c)–(j); Brown v. State, 721 A.2d 1263, 1265 (Del. 1998); In re One 1987 Toyota, 621 A.2d 796, 799 (Del. Super. Ct. 1992).

Innocent owner burden

Owner.

Del. Code Ann. tit. 16, §§ 4784(a)(7), 4785(a); Brown v. State, 721 A.2d 1263, 1265 (Del. 1998).

Profit incentive

Up to 100 percent.

Del. Code Ann. tit. 11, §§ 4110–4111; id. tit. 16, § 4784(f)(3).

Reporting requirements

None.

Federal Government

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

Florida

Standard of proof

Clear and convincing evidence.

Fla. Stat. § 932.704(8); Dep’t of Law Enforcement v. Real Prop., 588 So. 2d 957, 967–68 (Fla. 1991) (requiring clear and convincing standard of proof in forfeiture cases as a matter of constitutional law).

Innocent owner burden

Government.

Fla. Stat. § 932.703(6); Gomez v. Vill. of Pinecrest, 41 So. 3d 180, 184–85 & n.2 (Fla. 2010) (explaining that Florida law changed in 1995 to place the burden of proof on the seizing agency).

Profit incentive

Up to 85 percent.

Fla. Stat. § 932.7055(5)(c)(3).

Reporting requirements

None.

Georgia

Standard of proof

Preponderance of the evidence.

Ga. Code Ann. § 9-16-17(a)(1).

Innocent owner burden

Owner.  But in cases involving a jointly owned vehicle, no innocent owner claim is allowed.

Ga. Code Ann. § 9-16-17(a)(2).

Profit incentive

Up to 100 percent.

Ga. Code Ann. § 9-16-19(f).

Reporting requirements

Local law enforcement agencies and multijurisdictional task forces are required to file forfeiture reports with their governing jurisdiction and state agencies and district attorneys with the state auditor. All agencies are required to also submit their reports to the Carl Vinson Institute of Government at the University of Georgia.

Ga. Code Ann. § 9-16-19(g).

https://ted.cviog.uga.edu/financial-documents/asset-forfeiture

Hawaii

Standard of proof

Preponderance of the evidence.

Haw. Rev. Stat. § 712A-12(8).

Innocent owner burden

Owner.

Haw. Rev. Stat. § 712A-12(8).

Profit incentive

100 percent (25 percent to police, 25 percent to prosecuting attorney, 50 percent to attorney general for various law enforcement projects).

Haw. Rev. Stat. § 712A-16(2)–(4).

Reporting requirements

The Office of the Attorney General is required to aggregate agency forfeiture reports and submit them to the Legislature.

Haw. Rev. Stat. § 712A-16(6).

http://ag.hawaii.gov/publications/reports/reports-to-the-legislature/

Iowa

Standard of proof

Preponderance of the evidence.

Iowa Code § 809A.13(7).

Innocent owner burden

Owner.

Iowa Code § 809A.13(7).

Profit incentive

100 percent.

Iowa Code § 809A.17.

Reporting requirements

None.

Idaho

Standard of proof

Preponderance of the evidence.

Idaho Code § 37-2744(d).

Innocent owner burden

Owner.

Idaho Code §§ 37-2744(d)(3)(D)(IV) (conveyances), 37-2744A(d)(4) (real property).

Profit incentive

Up to 100 percent.

Idaho Code §§ 37-2744(e), 57-816(1).

Reporting requirements

None.

Illinois

Standard of proof

In general, the government must show probable cause and an owner must show by a preponderance of the evidence that her property is not forfeitable.

725 Ill. Comp. Stat. 150/9(G); People v. $174,980 United States Currency, 996 N.E.2d 1102, 1109–11 (Ill. App. Ct. 2013).

But when property is worth less than $150,000 and is not real property, the government need not make any showing. Forfeiture is automatic in these circumstances unless an owner files a claim and deposits a bond worth the greater of $100 or 10 percent of the value of the property. The owner must pay the cost of the forfeiture proceeding in full if she loses and must pay 10 percent of her bond to the court even if she prevails. The owner forfeits 90 percent of the bond to the prosecutor if she loses any of her property in the proceeding.

725 Ill. Comp. Stat. 150/6(C)–(D).

Innocent owner burden

Owner.

725 Ill. Comp. Stat. 150/8, 150/9(G).

Profit incentive

90 percent.

720 Ill. Comp. Stat. 570/505(g).

Reporting requirements

Seizing agencies must provide an inventory of drug-related seizures to the Director of the Department of State Police and reports of all property seized for forfeiture to the state’s attorney for the county.

720 Ill. Comp. Stat. 550/12(d); 725 Ill. Comp. Stat. 150/5.

Indiana

Standard of proof

Preponderance of the evidence.

Ind. Code § 34-24-1-4(a); see also Serrano v. State, 946 N.E.2d 1139, 1143–44 (Ind. 2011) (requiring state to prove a close “nexus” between vehicle and drugs); Lipscomb v. State, 857 N.E.2d 424, 428 (Ind. Ct. App. 2006) (requiring state to show connection between money and drugs).

Innocent owner burden

Depends on the property.  The state bears the burden when an owner makes a claim to equipment allegedly involved in the recording of a sex crime or makes a claim to a vehicle, but the owner bears the burden with respect to other property.

Ind. Code §§ 34-24-1-1(a)(10), (b), (c), (e), 34-24-1-4(a).

Profit incentive

No profit incentive.

Ind. Const. art. 8, § 2; Ind. Code § 34-24-1-4(c)–(d); Serrano v. State, 946 N.E.2d 1139, 1142 (Ind. 2011).

Reporting requirements

The Indiana Prosecuting Attorneys Council is required to aggregate forfeiture reports submitted by judicial districts and, beginning on July 15, 2016, must submit a compiled report to the Legislature.

Ind. Code §§ 33-39-8-5(7), 34-24-1-4.5.

Other sources

Gillers, H., Alesia, M., & Evans, T. (2010, November 7). Forfeiture law invites abuse of the system. The Indianapolis Star. Retrieved from http://archive.indystar.com/article/20101107/NEWS14/311070003/Forfeiture-law-invites-abuse-of-the-system.

Kansas

Standard of proof

Preponderance of the evidence.

Kan. Stat. Ann. § 60-4113(g).

Innocent owner burden

Owner.

Kan. Stat. Ann. §§ 60-4112(g)–(h), 60-4113(g)–(h).

Profit incentive

100 percent.

Kan. Stat. Ann. § 60-4117(c)–(d); cf. Kan. Att’y. Gen. Op. No. 2007-15, 2007 Kan. AG LEXIS 16, at *7 –8, 2007 WL 2021740 (July 6, 2007) (determining that forfeiture proceeds may be applied to special law enforcement projects, but cannot be used as a regular funding source).

Reporting requirements

Seizing agencies are required to submit forfeiture reports to their budgetary authorities.

Kan. Stat. Ann. § 60-4117(d)(1)–(2).

Kentucky

Standard of proof

Government must show clear and convincing evidence to forfeit real property but need only show “slight evidence of traceability” to a crime for other property, at which point the owner must show the property’s innocence by clear and convincing evidence.

Ky. Rev. Stat. Ann. § 218A.410(1)(j); Robbins v. Commonwealth, 336 S.W.3d 60, 64–65 (Ky. 2011).

Innocent owner burden

Owner, except in the case of real property.

Ky. Rev. Stat. Ann. § 218A.410(1)(j); Robbins v. Commonwealth, 336 S.W.3d 60, 64–65 (Ky. 2011).

Profit incentive

100 percent.

Ky. Rev. Stat. Ann. § 218A.420(4).

Reporting requirements

Seizing agencies must report their forfeitures to the Office of the State Auditor and to the secretary of the Justice and Public Safety Cabinet.

Ky. Rev. Stat. Ann. § 218A.440.

Louisiana

Standard of proof

Preponderance of the evidence.

La. Stat. Ann. § 40:2612(G).

Innocent owner burden

Owner.

La. Stat. Ann. § 40:2605.

Profit incentive

80 percent, while the remaining 20 percent goes to the criminal court fund.

La. Stat. Ann. § 40:2616(B)(3).

Reporting requirements

District attorneys are required to file annual seizure reports with the state Legislature.

La. Stat. Ann. § 40:2616(D).

Massachusetts

Standard of proof

Probable cause.

Mass. Gen. Laws ch. 94C, § 47(d); Commonwealth v. One 2004 Audi Sedan, 921 N.E.2d 85, 88–89 (Mass. 2010).

Innocent owner burden

Owner.

Mass. Gen. Laws ch. 94C, § 47(d).

Profit incentive

Up to 100 percent.

Mass. Gen. Laws ch. 94C, § 47(d).

Reporting requirements

Agencies must maintain an inventory of seized property.

Mass. Gen. Laws ch. 94C, § 47(e).

Maryland

Standard of proof

Generally, preponderance of the evidence.

1986 Mercedes Benz v. State, 638 A.2d 1164, 1168 (Md. 1994).

But, in some circumstances, the government can (but need not) establish a rebuttable presumption in favor of forfeiture if the government shows by clear and convincing evidence that, for example, money was acquired shortly after a drug crime when there is no other apparent source for the money.

Md. Code Ann., Crim. Proc. § 12-312(a).

Innocent owner burden

Generally, an owner bears the burden of proof, but a primary family residence cannot be forfeited unless both spousal co-owners are convicted of a crime.

Md. Code Ann., Crim. Proc. §§ 12-103(a), (e), 12-312(b).

Profit incentive

No profit incentive.

Md. Code Ann., Crim. Proc. § 12-403(c)–(e).

Reporting requirements

None.

Other sources

S.B. 528, 2015 Gen. Assemb., 2015 Reg. Sess. (Md. 2015).

Snead, J. (2015, June 1). Hogan fails on forfeiture reform. The Baltimore Sun. Retrieved from http://www.baltimoresun.com/news/opinion/oped/bs-ed-civil-forfeiture-20150601-story.html.

Maine

Standard of proof

Preponderance of the evidence.

Me. Stat. tit. 15, § 5822(3).

Innocent owner burden

Owner, except in cases involving a family’s primary residence, when the government bears the burden to show that any spouse or minor children knew about or consented to the owner’s illegal conduct.

Me. Stat. tit. 15, §§ 5821(7)(A), 5822(3).

Profit incentive

No profit incentive—all forfeiture proceeds go to the general fund unless another transfer is specifically approved by the court and by the governor or attorney general (in the case of a state forfeiture) or the relevant governmental entity (in the case of county-level or municipal-level forfeitures).

Me. Stat. tit. 15, §§ 5822(4), 5824.

Reporting requirements

Agencies must maintain an inventory of seized property.

Me. Stat. tit. 15, § 5825.

Michigan

Standard of proof

Effective Jan. 18, 2016, clear and convincing evidence.

H.B. 4505, 98th Legis., Reg. Sess. (Mich. 2015) (to be codified at Mich. Comp. Laws § 333.7521(2)).

Innocent owner burden

Owner for drug-related forfeitures, government for other types of forfeiture.

Mich. Comp. Laws § 333.7531(1); In re Forfeiture of a Quantity of Marijuana, 805 N.W.2d 217, 221 (Mich. Ct. App. 2011); cf. Mich. Comp. Laws § 600.4707(6) (placing burden on government for non-drug-related forfeitures).

Profit incentive

Up to 100 percent.

Mich. Comp. Laws § 333.7524(1)(b)(ii).

Reporting requirements

Agencies are required to file annual forfeiture reports with the State Police, which must compile those reports at the county level, submit them to the state Legislature and, beginning on July 1, 2017, publish them online.

H.B. 4504, 98th Legis., Reg. Sess. (Mich. 2015).

http://www.michigan.gov/msp/0,4643,7-123-1593_34040_34043_54578-15547–,00.html

Minnesota

Standard of proof

A criminal conviction is required for civil forfeiture and government must connect property to a crime by clear and convincing evidence.

Minn. Stat. § 609.531, subd. 6(a), (b), (d).

Innocent owner burden

Owner.

Minn. Stat. § 609.5311, subd. 3; Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 520 & n.6 (Minn. 2007); Blanche v. 1995 Pontiac Grand Prix, 599 N.W.2d 161, 167 (Minn. 1999).

NB: In DWI/DUI cases, a vehicle’s joint owner may not raise an innocent owner defense if the vehicle’s other owner is guilty. Minn. Stat. § 169A.63, subd. 7(d); Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431, 439–40 (Minn. 2009).

Profit incentive

90 percent, except in cases involving prostitution or human trafficking, when 60 percent goes to law enforcement.

Minn. Stat. § 609.5315, subds. 5, 5a, 5b.

Reporting requirements

Agencies are required to report their forfeitures to the state auditor on a monthly basis, and the auditor must then make annual reports to the state Legislature.

Minn. Stat. § 609.5315, subd. 6.

http://www.osa.state.mn.us/default.aspx?page=CriminalForfeitures

Missouri

Standard of proof

Preponderance of the evidence and a criminal conviction or guilty plea.

Mo. Rev. Stat. §§ 513.607(2), (6), .617(1), .645(6); City of Springfield v. Gee, 149 S.W.3d 609, 615–16 (Mo. Ct. App. 2004); State v. Eicholz, 999 S.W.2d 738, 742–43 (Mo. Ct. App. 1999); see also Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 110 (Mo. 1996) (noting preponderance is the minimum standard in civil cases).

Innocent owner burden

Owner.

Mo. Rev. Stat. § 513.615; State v. Beaird, 914 S.W.2d 374, 378 (Mo. Ct. App. 1996); State v. 1973 Fleetwood Mobile Home, 802 S.W.2d 582, 584 & n.3 (Mo. Ct. App. 1991).

Profit incentive

All forfeiture proceeds go to fund schools.

Mo. Const. art. IX, § 7; Mo. Rev. Stat. § 513.623.

Reporting requirements

Agencies are required to report seizures to the prosecuting attorney or attorney general, who must then create annual aggregate reports and submit them to the state auditor.

Mo. Rev. Stat. § 513.607(6)(2), (8)–(10).

http://app.auditor.mo.gov/AuditReports/AudRpt2.aspx?t=seizures

Mississippi

Standard of proof

Preponderance of the evidence.

Miss. Code Ann. § 41-29-179(2).

Innocent owner burden

Government.

Miss. Code Ann. § 41-29-179(2); Galloway v. City of New Albany, 735 So. 2d 407, 411–12 (Miss. 1999); Curtis v. State, 642 So. 2d 381, 384–86 (Miss. 1994); 1994 Mercury Cougar v. Tishomingo Cnty., 970 So. 2d 744, 747–49 (Miss. Ct. App. 2007). But cf. Miss. Code Ann. § 41-29-153(a)(4)(B), (a)(7)(A) (placing burden on owner, but statute has been interpreted in above cases to place burden on government).

Profit incentive

80 percent if one law enforcement agency participated in the forfeiture; 100 percent otherwise.

Miss. Code Ann. § 41-29-181(2).

Reporting requirements

None.

Other sources

Wing, N. (2015, May 19). Police in Mississippi town buy new station, cruisers with funds from aggressive civil forfeiture program. The Huffington Post. Retrieved from http://www.huffingtonpost.com/2015/05/19/richland-mississippi-civil-asset-forfeiture_n_7312988.html.

Montana

Standard of proof

Clear and convincing evidence and a criminal conviction are required to forfeit property.

Mont. Code Ann. § 44-12-207(1).

Innocent owner burden

Government must disprove innocent owner claim by clear and convincing evidence.

Mont. Code Ann. § 44-12-211; see also id. § 45-9-206.

Profit incentive

Up to 100 percent. When forfeiture money goes to the state, however, annual proceeds in excess of $125,000 must be divided equally between the general fund and a state forfeiture fund.

Mont. Code Ann. § 44-12-213.

Reporting requirements

None.

North Carolina

Standard of proof

In general, forfeiture requires a criminal conviction.  However, civil forfeiture is available in racketeering cases, which are governed by a preponderance of the evidence standard.

N.C. Gen. Stat. §§ 75D-5, 90-112; State ex. rel. Thornburg v. $52,029, 378 S.E.2d 1, 3–5 (N.C. 1989); State v. Johnson, 478 S.E.2d 16, 25 (N.C. Ct. App. 1996).

Innocent owner burden

In the context of a racketeering forfeiture, the owner bears the burden.

N.C. Gen. Stat. § 75D-5(i); State ex. rel. Thornburg v. 1907 N. Main St., 384 S.E.2d 585, 586–87 (N.C. Ct. App. 1989).

Profit incentive

All forfeiture proceeds must go to public schools.

N.C. Const. art. IX, § 7; State ex. rel. Thornburg v. 532 B St., 432 S.E.2d 684, 686–87 (N.C. 1993).

Reporting requirements

None.

North Dakota

Standard of proof

The government’s burden is probable cause; an innocent owner’s burden is preponderance of the evidence.

N.D. Cent. Code § 19-03.1-36.6; State v. One 2002 Dodge Intrepid Auto., 841 N.W.2d 239, 242 (N.D. 2013); State v. $44,140.00 U.S. Currency, 820 N.W.2d 697, 702 (N.D. 2012); but cf. N.D. Cent. Code § 19-03.1-36.2 (stating that the standard of proof in forfeiture proceedings is preponderance of the evidence).

Innocent owner burden

Owner.

N.D. Cent. Code § 19-03.1-37(1).

Profit incentive

Up to 100 percent. If the government’s forfeiture fund exceeds $200,000 over any two-year budget period, the excess must be deposited in the general fund.

N.D. Cent. Code §§ 54-12-14, 19-03.1-36(5).

Reporting requirements

None.

Other sources

J.F. (2014, May 12). Not so fast. The Economist. Retrieved from http://www.economist.com/blogs/democracyinamerica/2014/05/asset-forfeiture.

Nebraska

Standard of proof

Beyond a reasonable doubt, unless the seizure is gambling-related, in which case the government’s burden is preponderance of the evidence.

Neb. Rev. Stat. §§ 28-431(4), 28-1111; State v. Franco, 594 N.W.2d 633, 639–40 (Neb. 1999); State v. One 1985 Mercedes 190D Auto., 526 N.W.2d 657, 663 (Neb. 1995).

Innocent owner burden

Owner.

Neb. Rev. Stat. § 28-431(4).

Profit incentive

50 percent.

Neb. Const. art. VII, § 5(2); Neb. Rev. Stat. § 28-1439.02.

Reporting requirements

None.

Other sources

United States v. $63,530.00 in U.S. Currency, 781 F.3d 949 (8th Cir. 2015).

New Hampshire

Standard of proof

Preponderance of the evidence. But no forfeiture may be maintained against a person’s interest in property if that person has been found not guilty of the underlying criminal charge.

N.H. Rev. Stat. Ann. § 318-B:17-b(IV)(b), (d); State v. Pessetto, 8 A.3d 75, 79 (N.H. 2010).

Innocent owner burden

Owner.

N.H. Rev. Stat. Ann. § 318-B:17-b(IV)(b).

Profit incentive

90 percent (45 percent to local law enforcement, 45 percent to a state drug forfeiture fund), with caps.  Local law enforcement may keep no more than $225,000 from a single forfeiture, and amounts in the state drug forfeiture fund over $1,000,000 must be turned over to the state general fund.

N.H. Rev. Stat. Ann. § 318-B:17-b(V).

Reporting requirements

The attorney general must submit aggregate forfeiture reports to the state Legislature.

N.H. Rev. Stat. Ann. § 318-B:17-f.

http://doj.nh.gov/media-center/biennial-reports.htm

New Jersey

Standard of proof

Preponderance of the evidence.

State v. Seven Thousand Dollars, 642 A.2d 967, 975 (N.J. 1994); State v. $2,293 in U.S. Currency, 95 A.3d 260, 266 (N.J. Super. Ct. App. Div. 2014).

Innocent owner burden

Owner.

N.J. Stat. Ann. § 2C:64-5(b); State v. Seven Thousand Dollars, 642 A.2d 967, 974 (N.J. 1994).

Profit incentive

100 percent when forfeiture is pursued by local law enforcement; 95 percent when forfeiture is pursued by the attorney general.

N.J. Stat. Ann. § 2C:64-6(a), (c).

Reporting requirements

None.

New Mexico

Standard of proof

Clear and convincing evidence and a criminal conviction are required to forfeit property.

N.M. Stat. Ann. § 31-27-4.

Innocent owner burden

When a person claims to be an innocent owner and shows an ownership interest, the government must prove by clear and convincing evidence that the person had actual knowledge of the underlying crime giving rise to the forfeiture.

N.M. Stat. Ann. § 31-27-7.1(D).

Profit incentive

100 percent of proceeds must be deposited in the general fund.

N.M. Stat. Ann. § 31-27-7(B).

Reporting requirements

Agencies are required to submit annual seizure and forfeiture reports to the Department of Public Safety, which must aggregate the reports and, beginning on April 1, 2016, publish them on its website.

N.M. Stat. Ann. § 31-27-9.

Nevada

Standard of proof

Clear and convincing evidence and a criminal conviction are required for civil forfeiture of property seized in connection with a crime.

Nev. Rev. Stat. § 179.1173.

Innocent owner burden

Owner.

Nev. Rev. Stat. § 179.1164(2).

Profit incentive

Up to 100 percent. However, if the government’s forfeiture account contains more than $100,000 at the end of each fiscal year, 70 percent of the money in excess of $100,000 must be given to the school district in the judicial district where the property was seized.

Nev. Rev. Stat. § 179.1187.

Reporting requirements

Agencies must submit annual forfeiture reports to the Office of the Attorney General, and the attorney general must then aggregate those reports and, beginning on April 1, 2016, must publish reports on its website.

2015 Nev. Laws ch. 436 (S.B. 138), Sec. 30.

New York

Standard of proof

Generally, forfeitures must be based on a criminal conviction.  For drug crimes, however, a criminal conviction is not necessary and the government need only establish that a drug crime has occurred by clear and convincing evidence and then connect property to that crime by a preponderance of the evidence in order to forfeit it.

N.Y. C.P.L.R. §§ 1310(5)–(6), (9)–(10), 1311(3)(a)–(b)(McKinney); Hendley v. Clark, 543 N.Y.S.2d 554, 556 (N.Y. App. Div. 1989).

Innocent owner burden

Government.

N.Y. C.P.L.R. § 1311(3)(McKinney).

Profit incentive

60 percent.

N.Y. C.P.L.R. § 1349(2)(g)–(h)(McKinney).

Reporting requirements

Agencies are required to make annual forfeiture reports to the Division of Criminal Justice Services, which must provide aggregate annual reports to the Legislature.

N.Y. C.P.L.R. § 1349(4)(McKinney); N.Y. Exec. § 837-a(6)(McKinney).

http://www.criminaljustice.ny.gov/ops/docs/

Ohio

Standard of proof

Preponderance of the evidence.

Ohio Rev. Code Ann. § 2981.05(D).

Innocent owner burden

Owner.

Ohio Rev. Code Ann. §§ 2981.04(E), .09(A).

Profit incentive

Up to 100 percent in general and up to 90 percent in juvenile cases.

Ohio Rev. Code Ann. § 2981.13(B)(4).

Reporting requirements

Agencies must maintain an inventory of seized property.

Ohio Rev. Code Ann. §§ 2981.03(G), 2981.11(B).

Oklahoma

Standard of proof

Preponderance of the evidence.

Okla. Stat. tit. 63, § 2-503(B)–(C).

Innocent owner burden

Owner.

Okla. Stat. tit. 63, § 2-503(A)(4)(b), (A)(7); State ex rel. Campbell v. $18,235, 184 P.3d 1078, 1081 (Okla. 2008).

Profit incentive

Up to 100 percent.

Okla. Stat. tit. 63, §§ 2-503(F)(2), 2-506(L), 2-508.

Reporting requirements

Agencies must maintain an inventory of seized and forfeited property.

Okla. Stat. tit. 63, § 2-503(G).

Oregon

Standard of proof

A criminal conviction is required for all civil forfeitures. Preponderance of the evidence applies to personal property; clear and convincing evidence applies to real property.

Or. Rev. Stat. § 131A.255(1), (3).

Innocent owner burden

Government, except in cases where cash, weapons or negotiable instruments were found in close proximity to drugs, in which cases the owner bears the burden of showing by a preponderance of the evidence that the items are not the proceeds or instrumentalities of a drug crime.

Or. Rev. Stat. § 131A.255(2), (5).

Profit incentive

62.5 percent when brought by local law enforcement; 57 percent when brought by the state.

Or. Rev. Stat. §§ 131A.360(4), (6), .365(3), (5).

Reporting requirements

Agencies are required to report forfeiture information to the forfeiture counsel, which is required to report every seizure and its final disposition to the Asset Forfeiture Oversight Advisory Committee. The committee must aggregate these reports and submit them to the Legislature.

Or. Rev. Stat. §§ 131A.450, 131.600, 131A.455(5).

http://www.oregon.gov/cjc/assetforfeiture/Pages/Reporting.aspx

Pennsylvania

Standard of proof

Preponderance of the evidence.

Commonwealth v. $6,425, 880 A.2d 523, 529–30 & n.6 (Pa. 2005); Commonwealth v. 2314 Tasker St., 67 A.3d 202, 206 nn.8–9 (Pa. Commw. Ct. 2013).

Innocent owner burden

Owner.

42 Pa. Cons. Stat. § 6802(j); Commonwealth v. $6,425, 880 A.2d 523, 530 (Pa. 2005); Commonwealth v. 2314 Tasker St., 67 A.3d 202, 206 n. 9 (Pa. Commw. Ct. 2013).

Profit incentive

100 percent.

42 Pa. Cons. Stat. § 6801(e)–(h).

Reporting requirements

Counties are required to submit annual forfeiture reports to the Office of the Attorney General, which must aggregate the reports and provide them to the Legislature.

42 Pa. Cons. Stat. § 6801(i)–(j).

Other sources

Philadelphia district attorney budget figures: http://www.phila.gov/investor/CAFR.html

Rhode Island

Standard of proof

Government must show probable cause for seizure and the owner must show that the property is not forfeitable by a preponderance of the evidence.

21 R.I. Gen. Laws § 28-5.04.2(p).

Innocent owner burden

Owner.

21 R.I. Gen. Laws § 28-5.04.2(p).

Profit incentive

90 percent.

21 R.I. Gen. Laws § 28-5.04(b)(3).

Reporting requirements

Agencies are required to provide annual forfeiture reports to the state treasurer, and the treasurer and attorney general must submit aggregate annual forfeiture reports to the state Legislature.

21 R.I. Gen. Laws § 28-5.04(d); 7 R.I. Gen. Laws § 15-4.1(e).

Other sources

U.S. Department of Justice Office of Public Affairs. (2015). Google forfeits $500 million generated by online ads & prescription drug sales by Canadian online pharmacies [Press release]. Retrieved from http://www.justice.gov/opa/pr/google-forfeits-500-million-generated-online-ads-prescription-drug-sales-canadian-online.

Office of U.S. Senator Sheldon Whitehouse. (2013). U.S. Department of Justice grants RI cities flexibility to use Google settlement funds to stabilize pensions [Press release]. Retrieved from http://www.whitehouse.senate.gov/news/release/us-department-of-justice-grants-ri-cities-flexibility-to-use-google-settlement-funds-to-stabilize-pensions.

South Carolina

Standard of proof

Government must show probable cause for seizure and the owner must show that the property is not forfeitable by a preponderance of the evidence.

S.C. Code Ann. §§ 44-53-520(b) to -586(b); Pope v. Gordon, 633 S.E.2d 148, 151 (S.C. 2006).

Innocent owner burden

Owner.

S.C. Code Ann. § 44-53-540; Pope v. Gordon, 633 S.E.2d 148, 151 (S.C. 2006).

Profit incentive

95 percent (75 percent to law enforcement, 20 percent to prosecutors).

S.C. Code Ann. § 44-53-530(e).

Reporting requirements

Agencies are required to maintain an inventory of seized property and submit those inventories to the appropriate prosecution agency.

S.C. Code Ann. § 44-53-520(j).

South Dakota

Standard of proof

Preponderance of the evidence.

S.D. Codified Laws § 34-20B-80.

Innocent owner burden

Owner.

S.D. Codified Laws § 34-20B-88.

Profit incentive

100 percent. Forfeiture proceeds go into the attorney general’s “drug control fund” and then are distributed to law enforcement for drug enforcement efforts.

S.D. Codified Laws §§ 34-20B-64, 34-20B-89.

Reporting requirements

None.

Other sources

South Dakota Office of the Attorney General. (2013). South Dakota Highway Patrol to receive money for SWAT vehicle from Drug Control Fund [Press release]. Retrieved from http://atg.sd.gov/News/NewsReleases/NewsReleasesView/tabid/441/itemID/3177/moduleID/597/Default.aspx.

Tennessee

Standard of proof

Preponderance of the evidence.

Tenn. Code Ann. § 40-33-210(a); Stuart v. Dep’t of Safety, 963 S.W.2d 28, 33 (Tenn. 1998).

Innocent owner burden

Government, except in cases of vehicles, when the claimant must prove that she had no knowledge of the criminal use before a claim will be allowed.

Tenn. Code Ann. §§ 40-33-108(a), 40-33-210(a)(2), (c)–(f).

Profit incentive

Up to 100 percent.

Tenn. Code Ann. § 40-33-211(a)–(b).

Reporting requirements

None.

Texas

Standard of proof

Preponderance of the evidence.

Tex. Code Crim. Proc. Ann. art. 59.05(b).

Innocent owner burden

Owner.

Tex. Code Crim. Proc. Ann. art. 59.02(c), (h)(1).

Profit incentive

Up to 100 percent in contested cases; up to 70 percent in cases where a default judgment is entered.

Tex. Code Crim. Proc. Ann. art. 59.06(c), (c-3); see also Tex. Att’y Gen. Op. GA-0122 (Nov. 18, 2003) (noting 70–30 split between district attorney and Department of Public Safety).

Reporting requirements

The Office of the Attorney General is required to create annual aggregate forfeiture reports from reports submitted by agencies and, beginning on April 30, 2016, to publish those aggregate reports online.

Tex. Code Crim. Proc. Ann. art. 59.06(g), (s).

Utah

Standard of proof

Clear and convincing evidence.

Utah Code Ann. § 24-4-104(6).

Innocent owner burden

Government.

Utah Code Ann. § 24-4-107(2).

Profit incentive

100 percent.

Utah Code Ann. §§ 24-4-115 to -117.

Reporting requirements

Agencies are required to maintain an inventory of seized property.

Utah Code Ann. § 24-2-103(2)(b).

Virginia

Standard of proof

Preponderance of the evidence.

Va. Code Ann. § 19.2-386.10(A).

Innocent owner burden

Owner.

Va. Code Ann. §§ 19.2-386.10(A), 19.2-386.8(3).

Profit incentive

100 percent (90 percent to participating agencies, 10 percent to the Department of Criminal Justice Services).

Va. Code Ann. § 19.2-386.14(A1)–(B).

Reporting requirements

Agencies must report seizures and forfeitures to the Department of Criminal Justice Services.

Va. Code Ann. § 19.2-386.4; 6 Va. Admin. Code §§ 20-150-30, -40.

Other sources

Fain, T. (2015, February 17). Virginia senate kills asset forfeiture reforms. Daily Press. Retrieved from http://www.dailypress.com/news/politics/dp-nws-ga-asset-forfeiture-20150217-story.html.

Vermont

Standard of proof

Clear and convincing evidence and a criminal conviction are required for civil forfeiture.

Vt. Stat. Ann. tit. 18, §§ 4243(a), (c), 4244(e).

Innocent owner burden

Owner.

Vt. Stat. Ann. tit. 18, § 4244(d).

Profit incentive

45 percent.

Vt. Stat. Ann. tit. 18, § 4247(b)(1).

Reporting requirements

Agencies are required to submit reports of drug-related forfeitures to the state treasurer.

Vt. Stat. Ann. tit 18, § 4248.

Other sources

Email correspondence between Angela C. Erickson of the Institute for Justice and Tim Lueders-Dumont, public records officer in the Vermont Office of the State Treasurer (2015, June 15).

Washington

Standard of proof

Preponderance of the evidence.

Wash Rev. Code § 69.50.505(5).

Innocent owner burden

Owner.

Wash. Rev. Code § 69.50.505(1)(d)(ii), (g), (h)(i).

Profit incentive

90 percent.

Wash. Rev. Code § 69.50.505(9).

Reporting requirements

Seizing agencies are required to file quarterly reports of forfeited property with the state treasurer.

Wash. Rev. Code § 69.50.505(8)(c)–(d).

Wisconsin

Standard of proof

“[R]easonable certainty by the greater weight of the credible evidence.”

Wis. Stat. § 961.555(3); In re Return of Prop., 594 N.W.2d 738, 744 & n.9 (Wis. 1999); see generally Nommensen v. Am. Cont’l Ins. Co., 629 N.W.2d 301, 303–05 (Wis. 2001) (describing this unique standard as the burden of proof in civil cases).

Innocent owner burden

Owner.

Wis. Stat. § 961.56(1).

Profit incentive

No profit incentive.

Wis. Stat. § 961.55(5)(b), (e) (permitting seizing agencies to retain reasonable expenses).

Reporting requirements

None.

Other sources

Balko, R. (2012, May 21). Under asset forfeiture law, Wisconsin cops confiscate families’ bail money. The Huffington Post. Retrieved from http://www.huffingtonpost.com/2012/05/20/asset-forfeiture-wisconsin-bail-confiscated_n_1522328.html.

Park, M. (2009, August 17). 90 percent of U.S. bills carry traces of cocaine. CNN. Retrieved from http://www.cnn.com/2009/HEALTH/08/14/cocaine.traces.money/.

West Virginia

Standard of proof

Preponderance of the evidence.

W. Va. Code § 60A-7-705(e).

Innocent owner burden

Owner.

W. Va. Code § 60A-7-703(a)(5)(ii), (7), (8).

Profit incentive

100 percent.

W. Va. Code § 60A-7-706.

Reporting requirements

Agencies are required to submit annual forfeiture reports to their local budgetary authorities.

W. Va. Code § 60A-7-707(h).

Wyoming

Standard of proof

Preponderance of the evidence.

See In re U.S. Currency Totaling $7,209.00, 2012 WY 75, ¶ 9, 278 P.3d 234, 237 (Wyo. 2012).

Innocent owner burden

Owner.

Wyo. Stat. Ann. § 35-7-1050.

Profit incentive

Up to 100 percent.

Wyo. Stat. Ann. § 35-7-1049(e).

Reporting requirements

None.

Other sources

Harper, C. (2015, February 17). Wyoming governor vetoes asset forfeiture reform bill. The Daily Caller. Retrieved from http://dailycaller.com/2015/02/17/breaking-wyoming-governor-vetos-asset-forfeiture-reform-bill/.

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