Civil Forfeiture & Transparency

Civil forfeiture laws put the property of innocent citizens at risk—all the more so because most forfeiture activity is hidden from public view. Across the states and the federal government, public reporting on forfeiture activity ranges from poor to nonexistent, and most civil forfeiture laws lack even basic transparency requirements. Such poor public reporting makes it difficult, if not impossible, for lawmakers and the public to hold law enforcement agencies accountable for their forfeiture activity.

As the map in Figure 12 shows, only 11 states and the federal government make any kind of forfeiture information publicly accessible online. Another three states and the District of Columbia will put forfeiture records online starting in 2016. Thus, in the vast majority of states, learning anything about the scope of forfeiture activity is, at best, a challenge. And the little information that is available is plagued by inadequate, missing and inconsistent data.

Figure 12: Online Forfeiture Reporting

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*Since 2010, Georgia law enforcement agencies have been required to file forfeiture reports with the Carl Vinson Institute of Government at the University of Georgia for online distribution, but reporting has been infrequent and inconsistent. It remains to be seen whether agencies will respond to 2015 legislative reform and report as required.
Note: See Appendix B for sources.

State and Federal Forfeiture Reporting Requirements

Table 4 provides the forfeiture reporting and record-keeping requirements for all states, the District of Columbia and the federal government. In 17 states, agencies need not even keep records of seizures and forfeitures. Two states require only that law enforcement agencies report their forfeiture activity to their budgetary authority, such as a county commission or city council. Seven states merely require agencies engaging in forfeiture to maintain property inventory records. None of these states are required to post forfeiture information publicly.1

In 15 states and D.C., law enforcement agencies must collect information about forfeitures and send it to a state agency that compiles an aggregate report on forfeiture activity statewide. This responsibility falls to the attorney general in some states, while in others it belongs to a legislative committee, state auditor or law enforcement unit, such as the state police or a prosecutors’ council. In each state, the aggregate report is sent to the legislature. Most states with aggregate statewide reports make them available online, though Pennsylvania and Rhode Island do not. (The Institute for Justice obtained their reports through public records requests.) New reporting laws in Nevada,2 New Mexico,3 Texas4 and D.C.5 will require reports to be posted online starting in 2016. Indiana’s new reporting law does not require online distribution.6

Aggregate reports like these give a snapshot of forfeiture activity statewide, but they vary widely in the level of detail provided, as Table 4 indicates. A handful of states, such as California, produce an itemized list of every forfeiture. Others, like Arizona, only report forfeiture data by agency. Some compile forfeiture data at the county or judicial district level.

In eight states, law enforcement agencies must collect forfeiture records and send them to a state agency, such as the attorney general, the state treasurer or the state police, but no aggregate statewide report is produced, and no information is publicly released online. (Georgia agencies are supposed to submit records for online distribution, but they rarely comply.) Because the records are centralized in a single location, they can be obtained with a single public records request. But, depending on the state, deriving any kind of statewide picture of forfeiture activity requires compiling and analyzing tens, hundreds or even thousands of documents—a task beyond the ability or resources of the average citizen or lawmaker. As with aggregate statewide reports, these centralized records vary in level of detail available. Some states, such as Virginia, maintain records on every seizure, while others, like Louisiana, only provide forfeiture data for agencies or judicial districts.

Arkansas maintains centralized records and produces an aggregate report. The state’s drug director keeps a database of all forfeitures, known as the Asset Seizure Tracking System. Based on that database, the Legislative Auditing Committee produces an annual report and makes it available online; however, the report tracks only seizures, not completed forfeitures or resulting proceeds.

At the federal level, the departments of Justice and the Treasury both must provide annual audited reports to Congress regarding their forfeiture funds. They are required to provide basic accounting information—total deposits, total expenses, property retained, and cash and property transferred to state and local officials, including the estimated total value of physical property. They must also report the type and estimated value of property seized but not yet forfeited, as well as itemize such properties if they are worth more than $1 million. Both the departments of Justice and the Treasury make their reports available on their websites.

Table 4: Forfeiture Record-Keeping and Reporting
State Reporting Requirement
(Agency with records)
Level of Detail Provided Online
Alabama None No
Alaska None No
Arizona Aggregate report
(Criminal Justice Commission)
Agency Yes*
Arkansas Centralized records
(Drug Director)
Aggregate report (seizures only)
(Legislative Joint Auditing Committee)
Seizure
Judicial district
No

Yes

California Aggregate report

(Attorney General)

Forfeiture Yes*
Colorado Centralized records

(Department of Local Affairs)

Seizure No
Connecticut Inventory No
Delaware None No
District of Columbia Aggregate report
(Metropolitan Police Department & Attorney General)
Jan. 1, 2016
Florida None No
Georgia Centralized records
(Carl Vinson Institute of Government at the University of Georgia)
Forfeiture Yes
Hawaii Aggregate report
(Attorney General)
Agency Yes*
Idaho None No
Illinois Centralized records
(State Police)
Seizure No
Indiana Aggregate report
(Prosecuting Attorneys Council)
No
Iowa None No
Kansas Report to budgetary authority No
Kentucky Centralized records
(Justice and Public Safety Cabinet)
Forfeiture No
Louisiana Centralized records
(State Legislature)
Judicial district No
Maine Inventory No
Maryland None No
Massachusetts Inventory No
Michigan Aggregate report
(State Police)
Yes
Minnesota Aggregate report
(State Auditor)
Seizure Yes*
Mississippi None No
Missouri Aggregate report
(State Auditor)
County Yes*
Montana None No
Nebraska None No
Nevada Aggregate report
(Attorney General)
April 1, 2016
New Hampshire Aggregate report
(Attorney General)
None7 Yes*
New Jersey None No
New Mexico Aggregate report
(Department of Public Safety)
April 1, 2016
New York Aggregate report
(Division of Criminal Justice Services)
Forfeiture Yes*
North Carolina None No
North Dakota None No
Ohio Inventory No
Oklahoma Inventory No
Oregon Aggregate report
(Asset Forfeiture Oversight Committee)
Agency Yes*
Pennsylvania Aggregate report
(Attorney General)
County No
Rhode Island Aggregate report
(Attorney General)
Forfeiture No
South Carolina Inventory No
South Dakota None No
Tennessee None No
Texas Aggregate report
(Attorney General)
April 30, 2016
Utah Inventory No
Vermont Centralized records
(State Treasurer)
Forfeiture No
Virginia Centralized records
(Department of Criminal Justice Services)
Seizure No
Washington Centralized records
(State Treasurer)
Forfeiture No
West Virginia Report to budgetary authority No
Wisconsin None No
Wyoming None No
Federal Government Aggregate reports
(DOJ & Treasury)
Yes*

Notes: See Appendix B for sources. Since 2010, Georgia law enforcement agencies have been required to file forfeiture reports with the Carl Vinson Institute of Government at the University of Georgia for online distribution, but reporting has been infrequent and inconsistent. It remains to be seen whether agencies will respond to 2015 legislative reform and report as required.

* Online reporting not required by statute, but is regular practice.

Inadequate Information

Unfortunately, even where some kind of public accounting or record-keeping of forfeiture activity is required, it suffers from serious flaws. First, most reports and records fail to provide information essential to evaluating law enforcement’s use of forfeiture. For example, only two states, Oregon and Connecticut, distinguish between civil and criminal forfeitures—a key question given the substantial procedural differences between them. Nor do most states indicate how many people with property seized were charged with or convicted of a crime.8 Forfeiture reports rarely disclose how many assets are forfeited absent judicial review. Often, they fail to reveal such basic information as what type of and how much property was seized or forfeited, the size of the average forfeiture, or the estimated value of property retained for law enforcement use.

The annual accounting summaries of the forfeiture funds of the departments of Justice and the Treasury suffer from similar problems. In fact, most of the DOJ data for this report comes not from information reported to Congress or made public by the DOJ but rather from information the Institute for Justice obtained through a Freedom of Information Act request. IJ secured a copy of the DOJ’s forfeiture database, known as the Consolidated Asset Tracking System, or CATS.9 With CATS data, IJ was able to determine how much equitable sharing activity resulted from adoptions instead of joint task forces or investigations—information the DOJ does not publicly report. IJ was also able to compare civil, criminal and administrative forfeitures, another important question publicly available DOJ data do not answer.

Yet CATS has its own serious limitations. Most telling is that of the more than 1,300 variables the database tracks about cash and property seizures, not one indicates whether the owner of seized property was ever charged with or convicted of a crime. The DOJ tracks very carefully and publicly reports the proceeds generated by its forfeiture activity, but fails to report whether that activity is targeted toward actual criminals or is effective at stopping crime.

Failure to Report and Missing Data

The second major problem with forfeiture reports and records is that they are often missing data. In an effort to obtain forfeiture information from as many states as possible, the Institute for Justice filed at least one public records request in each of 43 states and the District of Columbia. For the year 2012, 19 states and D.C. provided usable data and an additional seven states published data online. However, at least nine states’ forfeiture records were missing data—often quite a bit, as detailed in Table 5.

Minnesota’s state auditor report acknowledged missing records from 66 law enforcement agencies,10 and California’s attorney general reported missing data from nine counties. 11 Aggregate reports from Michigan, Missouri and Pennsylvania likewise admitted that law enforcement agencies had failed to report as required.12 IJ found that Kentucky’s centralized records maintained by the state’s Office of Drug Control Policy, part of the Justice and Public Safety Cabinet, were missing information from 178 law enforcement agencies. Another four states that required centralized record-keeping in 2012 were also missing records. Though required to do so under state law, Oregon’s Asset Forfeiture Oversight Advisory Committee did not produce a report or even collect agency data in 2012 “[d]ue to budget cuts and downsizing of personnel at the time.”13 Other states’ records may also be missing data, but based on information provided, it is impossible to tell.

Even when agencies file required reports, important data may be missing. For example, the Missouri state auditor’s 2014 report found that more than 60 percent of forfeiture reports from law enforcement agencies were missing information.14 Moreover, the agencies that failed to report and the information missing varies from year to year, making it difficult to compare state data over time.

Georgia provides a case study of law enforcement’s failure to report forfeiture activity. Prior to a new reporting regime adopted in 2015, law enforcement agencies faced only a limited requirement to keep itemized lists of property received through forfeiture and expenditures made from forfeiture funds. Until 2010, agencies only had to provide these lists to their local budgetary authority.

Table 5: Reported Forfeitures Under State Law, 26 States and D.C., 2012
State Number* Value Missing Information obtained
Arizonaa $43,036,040b None Quarterly reports of RICO funds accounting
California 2,092 $15,046,570b 9 counties Annual attorney general forfeiture reports
Colorado $533,111c Most Annual individual agency reports submitted to the Department of Local Affairs
Connecticut 810 $2,264,680b n/a Itemized list of civil and criminal forfeitures from the attorney general
District of Columbia 1,942 $1,648,599d n/a Yearly administrative civil forfeiture totals from the Metropolitan Police Department
Hawaiia $535,811d None Annual attorney general reports
Illinois 6,764 $19,551,517d Unknown Itemized list of forfeitures from the state police
Iowa 960 $2,904,915e n/a Extrapolated from 10% of annual forfeiture proceeds received by the Iowa County Attorneys Association15
Kentuckya $2,038,918d 178 agencies Office of Drug Control Policy’s summary and database of forfeitures
Louisiana $8,396,656b None Annual standardized judicial district reports of total forfeitures
Massachusettsa $8,843,408b n/a Annual deposits in the forfeiture trust fund accounts from the state comptroller
Michigan $13,777,858d 56 agencies Annual state police reports
Minnesota 6,851 $8,393,164d 66 agencies Annual state auditor reports
Missouri 49 $83,868d 1 county Annual state auditor reports
New York $16,928,315b Unknown Annual Division of Criminal Justice Services reports
Ohio $9,091,965d 10 agencies Annual agency reports submitted to the attorney general
Oklahomaa $4,310,089b n/a Annual judicial district fund accounting from the District Attorneys Council
Pennsylvaniaa $11,694,221b 4 counties Annual attorney general reports
Rhode Island 290 $1,941,421d Unknown Itemized list of forfeitures from the attorney general
South Carolinaa $2,763,891d n/a Extrapolated from annual general fund deposits of 5% of forfeiture proceeds from the treasurer16
Tennessee 10,424 $15,127,022c n/a Itemized list of forfeitures from the Department of Safety and Homeland Security
Texasa $46,821,446b Unknown Itemized list of forfeitures from the attorney general
Utaha 144 $1,362,786b n/a Itemized list of forfeiture fund deposits from the Commission on Criminal and Juvenile Justice
Vermont 0 $0 Unknown General fund accounting of forfeiture deposits from the state treasurer17
Virginiaa 1,425 $6,951,900d Unknown Itemized list of forfeitures from the Department of Criminal Justice Services
Washington $9,862,644b 43 agencies Itemized remittances to the treasurer for each agency
Wyoming 47 $116,084d Unknown Itemized list of forfeitures from the attorney general

Notes: New Hampshire is not represented because data provided cover a two-year period and cannot be separated into individual years. State agencies in Connecticut, Tennessee and Wyoming provided itemized reports even though state law does not require centralized data collection. Ohio law enforcement agencies were required to provide annual reports to the attorney general until a 2012 change in the law. Data from Iowa, Massachusetts, Oklahoma, South Carolina and Utah come from forfeiture fund accounts, not forfeiture reports, which are not required in those states.
* Numbers include non-valued property
a – Data represent fiscal-year forfeitures; b – Cash and sold property; c – Cash only; d – Total estimated value; e – Cash and real estate
Source: Institute for Justice analysis of civil and criminal forfeiture data from online reports and public records requests.

Yet a 2002 state audit surveyed 26 Georgia agencies and found that 85 percent of them failed to comply with even this limited reporting requirement.18 A 2011 IJ report similarly found widespread failures to report: Of a random sample of 20 law enforcement agencies contacted, only two were reporting as required by law. And of the 15 major law enforcement agencies in Georgia’s five most populous cities and counties, only one had produced the required report.19

Following a 2010 legislative mandate to publish reports online and a 2011 lawsuit that forced some agencies to begin reporting, IJ again examined forfeiture reporting by Georgia law enforcement. The second study found agencies still failing to report—and when they did, the data provided often lacked even basic details, such as type of property or dollar value of forfeitures.20 The reporting reforms adopted in 2015 address this problem by requiring standardized reports, though it remains to be seen whether agencies will start filing them.

Inconsistencies Across States

A third problem with state forfeiture reporting is the considerable inconsistencies in what states record and publicly report about their forfeiture activity. As Table 5 indicates, some states’ forfeiture totals represent cash and proceeds from property sold, some represent cash only, some represent cash and the value of forfeited real estate, and some provide an estimated total value of forfeitures. In five states, values do not represent reports of forfeitures—which are not required—but rather accounting records of deposits into forfeiture or other funds. Moreover, some states report forfeitures in calendar years while others report in fiscal years. All of these differences make reliable apples-to-apples comparisons across states virtually impossible.

Continue Reading: Sidebar: Despite Freedom-of-Information Laws, Forfeiture Records Are Often Neither Free Nor Informative


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