Grading State & Federal Civil Forfeiture Laws

Nearly every state, the District of Columbia and the federal government have civil forfeiture laws, but they differ in their financial incentives and their procedures. This report grades state and federal civil forfeiture laws based on the incentives they create for law enforcement agencies to police for profit and the protections they afford to property owners.

Three fundamental elements of civil forfeiture laws were examined when calculating grades: the financial incentive, the standard of proof the government must meet to forfeit property, and whether the burden to prove innocence or guilt is on innocent third-party owners or the government.

Financial Incentive

Put simply, civil forfeiture laws present law enforcement with significant incentives to seize property for financial gain. Figure 6 shows for each state, the District of Columbia and the federal government the percentage of forfeiture proceeds allowed to flow to law enforcement. Only seven states and D.C. block law enforcement access to forfeiture proceeds. The remaining jurisdictions allow at least 45 percent—and in many cases, including the federal government’s, 100 percent—of the value of forfeited property to be directed to law enforcement. Property may also be retained for official use. These allowances represent a significant opportunity for agencies to self-fund through civil forfeiture, and evidence suggests that agencies are taking full advantage.

Figure 6: Financial Incentives in Civil Forfeiture Laws

pfp figure 6

*Agencies may keep or be awarded up to the stated percentages by a court, but a lesser amount may instead be awarded.
Note: See Appendix B for sources and greater detail.

Philadelphia, for example, operates a forfeiture machine. Pennsylvania state law enables agencies to retain 100 percent of the value of forfeited property, and law enforcement in Philadelphia took in more than $69 million between 2002 and 2013. 1 That total comprises more than 1,200 houses, 3,400 vehicles, $47 million in cash, and various other items, such as electronics and jewelry. 2

Philadelphia spent none of its forfeiture funds on proactive, community-based anti-drug and crime prevention programs, despite proponents’ claims that forfeiture funds are essential to supporting such efforts.

The total also represents almost one-fifth of the district attorney’s general, appropriated budget. With those funds, Philadelphia has paid for equipment, maintenance, education and training, and salaries of personnel, this last of which represents the most direct conflict of interest for the unbiased administration of justice. Conspicuously, Philadelphia spent none of its forfeiture funds on proactive, community-based anti-drug and crime prevention programs, 3 despite proponents’ claims that forfeiture funds are essential to supporting such efforts.

Law enforcement’s response to forfeiture incentives has been on even starker display in Tennessee. As part of a multiyear investigation, 4 a television news team followed police officers as they patrolled Interstate 40. The news team found that rather than working eastbound lanes, where smugglers transport drugs to the East Coast, officers focused on westbound lanes, where smugglers haul cash back to Mexico. A subsequent review of drug task force records indicated that officers made 10 times as many stops on the westbound side of the highway as they did on the eastbound side.

And in 2009, the tiny East Texas town of Tenaha (pop. 1,100) drew national attention when a lawsuit exposed a civil forfeiture scheme in which law enforcement netted millions of dollars through highway traffic stops. 5 In what became a case study of forfeiture abuse, police officers stopped out-of-state drivers for insubstantial reasons in order to search the vehicles. Upon discovering cash or other items of value, officers seized the properties and threatened owners with bogus charges—even state removal of their children—if they refused to waive their rights to the properties. Forfeiture proceeds were used to buy, among other things, a $500 popcorn machine, candy for a poultry festival and $400 worth of catering. Money also went to a local chamber of commerce, a youth baseball league, a local Baptist church and the pocket of a Tenaha police officer whose name appeared in complaints from stopped motorists. 6

The financial incentive is so compelling that some Indiana law enforcement agencies have retained large shares of forfeiture funds despite a clear state constitutional mandate directing them elsewhere. Article 8, Section 2 of the Indiana Constitution requires that all forfeiture proceeds go to the state school fund. However, some officials have taken full advantage of a state statute permitting law enforcement agencies to first deduct related investigative costs. 7 In Marion County—the largest county in the state—officials have used the provision to keep all of the proceeds of forfeiture 8 by dividing forfeited property among a range of law enforcement agencies rather than according to a case-specific cost determination. 9 Some agencies manage to keep nearly all of the bounty, even though Indiana is, on paper, a state where they should retain zero proceeds. 10

Standard of Proof

People who manage to make it to court to fight a seizure often face a major disadvantage: the low standards of proof required to forfeit property under most civil forfeiture laws. The standard of proof is the hurdle the government must clear to win a civil forfeiture case. It dictates how convincing the government’s evidence must be to a judge or jury. The most familiar standard of proof in the American legal system is “beyond a reasonable doubt,” the requirement for convicting a person of a crime. American law sets such a high standard in criminal cases to avoid punishing the innocent. Yet federal and most state civil forfeiture laws set substantially lower standards for depriving people of their property, as the map in Figure 7 shows.

Thirty-one states and the federal government set “preponderance of the evidence” as the standard of proof for all civil forfeitures, making it the most common standard nationally. A preponderance of the evidence standard means that property is more likely than not connected to a crime. It is often thought of as a 51 percent standard, meaning the evidence must be a bit more than 50–50—or slightly better than a coin flip—in favor of the government, a much lower hurdle than beyond a reasonable doubt. 11 Remarkably, Massachusetts and North Dakota set a lower standard still, requiring only probable cause for civil forfeiture. Probable cause is the same low evidentiary standard that police must meet in order to make an arrest, carry out a search or seize property in the first place.

A growing number of states demand a higher standard of proof for civil forfeitures. Nebraska requires proof beyond a reasonable doubt for most civil forfeitures, and North Carolina requires criminal convictions in most cases. California sets a standard of beyond a reasonable doubt to forfeit most kinds of property, with a conviction required (though not necessarily the owner’s conviction). In 2015, New Mexico abolished civil forfeiture. It now requires a criminal conviction with proof beyond a reasonable doubt for all forfeitures; after securing a conviction, the government must prove in the same criminal proceeding that seized property is connected to the crime by “clear and convincing evidence,” a standard lower than reasonable doubt but higher than preponderance of the evidence. Minnesota, Montana, Nevada and Vermont now also demand criminal convictions, followed by civil trials linking seized property to the crime by clear and convincing evidence. Missouri requires a criminal conviction and proof by a preponderance of the evidence that seized property is connected to the crime; Oregon law is similar for forfeitures of personal property (which account for most forfeitures) but sets a higher standard of clear and convincing evidence to forfeit real property.

Six states—Colorado, Connecticut, Florida, Michigan, New York and Utah—demand that the government provide clear and convincing evidence of a property’s connection to criminal activity for most or all civil forfeitures. The remaining states and the District of Columbia apply different standards to different types of property or under different circumstances. The State Profiles and Appendix B provide greater detail.

Figure 7: Standards of Proof for Civil Forfeiture

figure 7-updated-3
*Conviction required for most or all forfeitures.
Notes: States with multiple standards apply different standards of proof to different types of property or under certain circumstances. Oregon requires a conviction and clear and convincing evidence to forfeit real property. See Appendix B for sources.

Low standards of proof mean that, in most jurisdictions, civil forfeiture cases are fairly easy for the government to win and difficult for property owners to fight. In particular, winning a civil forfeiture case is often much easier for the government than securing a criminal conviction. In a stark illustration of the difference, a property owner in Arizona was acquitted of criminal charges yet still lost her house to civil forfeiture. 12

Prosecutors are well aware of the advantages such lower hurdles afford them. For example, when asked by a radio host why Philadelphia would not return seized property in a case where the owner was found innocent of any crime, then-Assistant District Attorney Beth Grossman made clear that a property owner’s guilt or innocence, as traditionally established in American law by proof beyond a reasonable doubt, is irrelevant when it comes to civil forfeiture:

[F]irst of all, our standard, our burden of proof, is lower than beyond a reasonable doubt, and it is a civil action as opposed to a criminal one, so because the Commonwealth in a criminal case could not reach the burden of beyond a reasonable doubt does not prohibit us to continue to proceed against the property, which is our named defendant. So with the preponderance of the evidence, yes, we can continue to still proceed against it.

 

Pressed by the host on why the city did not wait until a person’s innocence or guilt was established before seizing property, Grossman replied, “Because I am not required to do so.” And asked if she thought it was a good law, Grossman answered, “I think it’s a fabulous law.” 13

Federal prosecutors likewise prefer civil forfeiture to criminal proceedings. Assistant U.S. Attorney Craig Gaumer, who has described civil forfeiture as “a prosecutor’s secret weapon,” wrote: “Civil forfeiture laws make it easier to seize potentially forfeitable personal property than their criminal forfeiture counterparts.” Among their advantages, he noted that “Civil forfeiture cases do not require the criminal conviction of the owner (or anyone else) as a prerequisite to forfeiture.” 14

Innocent Owner Burden

With civil forfeiture, not only can people lose their property without ever being charged with or convicted of a crime, they can also lose their property when someone else allegedly uses it in the commission of a crime. For example, police in Arizona arrested a man for stealing auto parts and seized the truck he had put them on. The truck was forfeited, even though it belonged to the man’s mother, who had done nothing wrong. 15 A New Jersey woman lost her car after her son used it—without her knowledge or consent—while selling marijuana. It took two years of litigation to win it back. 16  And a Michigan woman saw the car she co-owned with her husband forfeited after he was caught soliciting a prostitute in it—a crime she neither knew about nor consented to. 17

To avoid punishing such innocent third parties, civil forfeiture laws generally create a carve-out: Property owners (or partial owners) who had nothing to do with the alleged crime that prompted a seizure can petition to get the property (or their share of it) back. 18 In theory, such “innocent owner” claims provide protection against unjust civil forfeitures. In practice, however, most innocent owner provisions put property owners at a disadvantage, making it easy for the government to hold on to seized property.

For starters, making an innocent owner claim is no easy task. Rhonda Cox, the Arizona mother whose son was arrested for theft, learned this the hard way. After her truck was seized, she told two police officers that it was hers and that she had nothing to do with her son’s crime. Both told her that she would never get her property back. Cox then provided proof of ownership to the county attorney’s office and explained that she had no knowledge of the truck’s involvement with any illegal activity. The prosecutor rejected her plea and started legal actions to forfeit her truck.

On her own and without a lawyer, Cox filed the paperwork required to challenge the forfeiture as an innocent owner—paying a $304 filing fee for the privilege. But eventually she gave up. The legal process was too convoluted, and—as the prosecutor had warned her—if she lost, not only would she lose the truck, but under Arizona law she would also have to pay the government’s legal costs. 19

Cox lost her truck without ever having been accused of a crime and without ever having gotten her day in court. Innocent third-party owners who do make it to court will often face a bizarre and almost impossible task: proving their own innocence.

As shown in Figure 8, innocent owner provisions in federal law and 35 states place the burden of proof on owners, meaning that owners must prove they had nothing to do with the alleged crime. In essence, most civil forfeiture laws presume that people are connected to any criminal activity involving their property and force them to prove otherwise to recover it. This is precisely the opposite of what happens in criminal trials, where the accused is presumed innocent until proven guilty by the government. It also often involves a practical impossibility, as it requires people to prove a negative—that they did not know about or consent to the illegal use of their property.

Only 10 states and the District of Columbia demand that the government prove owners did something wrong before forfeiting their property. In the remaining states, whether the burden of proof falls on the owner or the government generally depends on the type of property involved. The State Profiles and Appendix B provide greater detail.

Figure 8: Innocent Owner Burdens in Civil Forfeiture Laws

pfp figure 8

Note: See Appendix B for sources.

Civil Forfeiture Law Grades

Using these three elements—the financial incentive for law enforcement to seize, the government’s standard of proof to forfeit, and who bears the burden in innocent owner claims—this report grades each state on the extent to which its civil forfeiture laws protect property rights or encourage policing for profit. Grades were assigned for each of the three key elements, as indicated in Appendix A, and then combined to create the grades. High grades denote laws that contain strong property rights protections and a smaller (or no) financial incentive to seize, while low grades indicate laws that encourage seizures of property by making civil forfeiture both easy and rewarding for law enforcement.

Table 1 provides the grades for all states, the District of Columbia and the federal government, ranked from best to worst. Figure 9 provides the grades in map form. New Mexico, D.C., North Carolina, Missouri, Indiana and Maine earn the highest grades. The laws of all six prohibit agencies from keeping forfeiture proceeds, and the top four provide some of the best protections for property owners in the country. At the bottom of the list are Massachusetts and North Dakota, both of which earn F grades. Citizens in both states get the worst of everything when it comes to civil forfeiture—laws that provide few property rights protections and allow law enforcement agencies to enjoy lucrative incentives to engage in forfeiture activity.

Table 1: Civil Forfeiture Law Grades Ranked
New Mexico A-
D.C. B+
North Carolina B+
Missouri B+
Indiana B+
Maine B+
Maryland B
Wisconsin B
California C+
Oregon C+
Colorado C
Connecticut C
New York C
Nebraska C
Vermont C
Mississippi C-
Alaska D+
Louisiana D+
Texas D+
Florida D+
Minnesota D+
Illinois D-
New Hampshire D-
Rhode Island D-
South Carolina D-
Washington D-
Montana D-
Utah D-
Nevada D-
Kentucky D-
Michigan D-
Alabama D-
Tennessee D-
Arizona D-
Arkansas D-
Delaware D-
Georgia D-
Hawaii D-
Idaho D-
Iowa D-
Kansas D-
New Jersey D-
Ohio D-
Oklahoma D-
Pennsylvania D-
South Dakota D-
Virginia D-
West Virginia D-
Wyoming D-
Federal Government D-
Massachusetts F
North Dakota F
Figure 9: Civil Forfeiture Law Grades

policing-for-profit-web_pdf__page_27_of_186_

A scan down the list in Table 1 reveals the poor state of affairs in civil forfeiture across the United States. Only 14 states and the District of Columbia earned grades of C or better, and 35 states earned grades of D+ or worse. The federal government earned a D-, putting its civil forfeiture laws among the nation’s worst and exposing all Americans to yet another threat to their property rights. These results make it clear that significant reform is needed.

Yet, thus far, reform has been slow in coming. When the first edition of Policing for Profit was released in 2010, civil forfeiture was little known among members of the public and even elected officials. As awareness grew, calls for reform increased, resulting in efforts in 2013, 2014 and 2015 in at least 14 states and in Congress. To date, however, only five states—New Mexico, 20 Nevada, 21 Montana, 22 Minnesota 23 and Michigan—and the District of Columbia 24 have substantively reformed their laws to increase protections for property owners. A sixth state, Vermont, 25 also reformed its laws but offset improvements by giving law enforcement a new financial incentive to seize.

Of these changes, New Mexico’s were the most sweeping. The reform was supported by a bipartisan group of legislators and reluctantly signed into law by Gov. Susana Martinez, a former district attorney. The new law ended civil forfeiture and replaced it with criminal forfeiture. Previously, forfeiture entailed civil litigation independent of criminal prosecution; now the government must first convict a suspect in criminal court. Then the same judge and jury determine if the property in question was linked to that crime. As for innocent owner claims, now the government must also prove that the person claiming to be an innocent owner had actual knowledge of the crime giving rise to the forfeiture—a significant change from the previous law, which, in most instances, placed the burden on property owners to prove their own innocence. The new law of the Land of Enchantment also eliminated law enforcement’s financial incentive to pursue forfeitures. Now all forfeiture monies must be deposited in the state’s general fund rather than in agency accounts, where 100 percent of forfeiture funds had gone previously. Due to these changes, the state’s grade jumped from a D- to an A-. New Mexico’s reforms set a clear example for other states to follow in protecting people from unjust forfeitures.

Nevada’s and Montana’s new laws now require a conviction in criminal court as a prerequisite to forfeiture of property in civil court, increasing protections for property owners. Reforms in Montana also shifted the burden of proof in innocent owner claims to the government. Although these reforms are praiseworthy, both states could further improve protections for property owners by addressing the elephant in the room: the financial incentive to seize created by directing as much as 100 percent of forfeiture proceeds to law enforcement. Indeed, the persistence of the profit motive in the states’ laws kept their grades from improving much: Nevada’s D- stayed the same and Montana’s grade budged, but barely, from an F to a D-.

Minnesota’s new law as of 2014, like those of Nevada and Montana, requires a conviction in criminal court prior to forfeiture of property in civil court. The new law also changed the burden of proof for a suspect whose property was seized as part of a drug investigation. The old law required a suspect to prove that his property was unrelated to drugs found in the investigation. For example, the suspect would have had to prove that the television in his bedroom was unrelated to marijuana in the pocket of a coat hanging in his closet. The new law requires the government to prove the connection between the seized property and the drugs. 26 These are substantial improvements, but, as in Nevada and Montana, leaders in the North Star State could significantly increase protections for property owners—and raise the state’s grade significantly—by dropping the financial incentive from its current 90 percent to zero. Because the profit incentive remains, Minnesota’s reforms only raised its grade from a D to a D+.

In 2015, the Vermont Legislature, in what began as an animal fighting bill, 27 amended the state’s forfeiture laws to require a conviction in criminal court prior to a forfeiture proceeding in civil court. 28 Unfortunately, this improvement was offset by another change that created, for the first time, a financial incentive to seize. Previously, 100 percent of forfeiture proceeds were deposited in the state treasury, but now law enforcement agencies get to keep 45 percent. 29 This explains why Vermont’s grade dropped from a very respectable B+ to a C. In October 2015—after this report had gone to print—Gov. Rick Snyder of Michigan signed a package of modest forfeiture reform bills, improving the state’s standard of proof to clear and convincing evidence in all cases.

The District of Columbia also adopted civil forfeiture reform that increased protections for property owners. 30 The government now must prove its case by a preponderance of the evidence for most properties and by clear and convincing evidence for cars and real property. The law also shifted the burden of proof to the government in innocent owner claims. Best of all, the reform directs all forfeiture funds to the city’s general fund rather than law enforcement coffers, making D.C. and New Mexico the only jurisdictions with recent reforms eliminating the profit incentive. Taken together, these reforms earn the District a well-deserved B+ grade.

A common refrain in the states where reform efforts have been unsuccessful is that resistance from law enforcement leaders killed the bills.

Wyoming 31 and Maryland 32 also saw reform bills pass their respective legislatures, only to be vetoed by their governors, and the Texas 33 and Virginia 34 legislatures saw the introduction of reform bills but failed to adopt them.

A common refrain in the states where reform efforts have been unsuccessful is that resistance from law enforcement leaders killed the bills. In Texas, for example, 13 civil forfeiture reform bills were introduced during the 2015 legislative session. None of them passed, due in large part to law enforcement opposition. 35 Five 36 of the 13 that made it out of the House Criminal Jurisprudence Committee—only to die in the Calendars Committee—would have significantly reformed the state’s laws by increasing the standard of proof from preponderance of the evidence to clear and convincing evidence, shifting the burden in innocent owner claims to the government, increasing transparency through stronger reporting requirements, and granting attorney’s fees to owners if the government failed to forfeit successfully. 37

Another bill in Texas that would have required the government to convict a property owner of a crime before forfeiting property 38 died in the State Affairs Committee after the chairman, under pressure from law enforcement, refused to allow the bill to move forward. 39  The bill’s sponsor, Rep. David Simpson of Longview, in Gregg County, also felt the heat from law enforcement when he appeared on a public panel in Austin to discuss forfeiture reform. A coterie of law enforcement officers and a judge from Simpson’s district flew to the panel on a donated private plane to express their opposition to reform. 40

Similarly, Virginia’s H.B. 1287 would have required a criminal conviction prior to forfeiture, but law enforcement agencies, including the Virginia State Police, opposed the bill at committee hearings. 41 As one observer noted, “Anytime law enforcement opposes a bill in Virginia, it’s an uphill battle.” 42

Finally, at the federal level, in January 2015, Sen. Rand Paul and Rep. Tim Walberg reintroduced the Fifth Amendment Integrity Restoration (FAIR) Act. 43 If passed, the bill would, among other things, compel the Department of Justice to deposit forfeited funds in the Treasury Department’s general fund, thereby reducing the financial incentive to seize; require the government to prove property is forfeitable with clear and convincing evidence; force the government to prove that an individual making an innocent owner claim was aware of the criminal use of his or her property; and provide counsel to indigent owners in civil forfeiture cases. 44

Continue Reading: Sidebar: Civil Forfeiture and the Temptation to Seize


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