Conclusion and Recommendations

Civil forfeiture’s most fundamental characteristic is that it is civil. This may seem obvious, but it is a fact often overlooked by those who argue it is an essential tool to thwart criminals. It is also a fact of critical importance to understanding how civil forfeiture poses a grave threat to due process and property rights.

As a civil proceeding, civil forfeiture does not require the government to allege, let alone prove, a specific person committed a specific crime to deprive people of cash, cars, or other property. Neither the Nevada Highway Patrol nor the Drug Enforcement Administration could point to any drug transactions in which it believed Stephen Lara participated. The FBI could not so much as name the crime it believed Linda Martin or the other safe-deposit box holders committed. Even the acquittal of Cristal Starling’s ex-boyfriend did not end the attempted forfeiture of her savings. In each case, the government merely had to claim the cash was somehow tainted and then hope its owners did not have the wherewithal to navigate the legal labyrinth and ultimately prevail in civil litigation to win it back.

Data suggest many, if not most, people will not. The ins and outs of civil proceedings may be familiar to lawyers, but they are unlikely to be familiar to anyone else, especially the lower-income Americans most likely to be swept up in it.

And unlike criminal prosecutions, civil forfeiture proceedings lack essential protections to prevent the innocent from being wrongfully punished: There is no right to counsel. Failure to appear or respond results in either automatic forfeiture or default judgment with, at most, limited judicial involvement. Most often, the government need not quickly establish probable cause before a neutral arbiter. And if and when the government does make its case for forfeiture in a court of law, it faces a lower standard of proof—or even enjoys the benefit of an innocent owner bearing the burden of proving their innocence. The few who successfully run this gauntlet are likely to have been without their cash, cars, or other property for months, if not years. Throughout, the risk of wrongfully depriving the innocent of their property is high, especially when police and prosecutors have a financial stake in the outcome.

Historically, civil forfeiture’s departure from due process guarantees was often justified because criminals lay beyond the government’s jurisdiction, while their property did not. But, as Justices Gorsuch and Thomas asked in Culley, “How does any of that [history] support the use of civil forfeiture in so many cases today, where the government can secure personal jurisdiction over the wrongdoer? And where seizing his property is not the only adequate means for addressing his offense?” ¹

Indeed, while data suggest a troublingly large share of forfeitures are not accompanied by convictions, many are. Even if convictions are not all of owners, these data make clear that states can and often do “secure personal jurisdiction over the wrongdoer” and that seizing property is not their only means for addressing the offense.

In modern times, when the government pursues civil forfeiture, it often is not for lack of jurisdiction but rather for lack of evidence to sustain an arrest or charges. Examples of law enforcement seizing property without an arrest or charges abound. In addition to those already mentioned—Stephen Lara, Linda Martin and the hundreds of other owners of safe-deposit boxes raided by the FBI, Stephanie Wilson, owners of FedEx parcels that passed through Indianapolis, Brian Moore Jr., Kermit Warren, Jerry Johnson, Rebecca Brown, Stacy Esposito, Matt Berger, Carole Hinders, and Jeff Hirsch and his brothers—the list includes Nang Thai and Weichuan Liu, Clifford Skinner, Nazier McFadden, He Song Dong, Rustem Kazazi, Anthonia Nwaorie, Melisa Bell (formerly Ingram), Gerardo Serrano, Phil Parhamovich, Miladis Salgado, Lyndon McLellan, and likely many others. ²

Increasingly, federal and state courts alike are coming to recognize the fundamental due process problems posed by civil forfeiture—and even holding the government to account for problems such as having improper financial incentives, unfairly burdening innocent owners, evading state forfeiture law through federal equitable sharing, creating unreasonable delays, and refusing to pay attorney fees. To protect due process rights, this trend should continue.

Lawmakers, too, can curb civil forfeiture. First and foremost, they should eliminate the financial incentive behind forfeiture, both civil and criminal, to ensure laws are enforced without improper motives. They should provide prompt post-seizure hearings that enable owners to quickly challenge the government’s basis for seizing and holding on to property, creating a check on warrantless seizures and helping to prevent lengthy deprivations. If retaining civil forfeiture, lawmakers should raise the standard of proof and require the government to prove an innocent owner deserves to be deprived of their property. They should be wary of the half measures of so-called conviction requirements that often fail to require a conviction, such as when no one files a claim, or that can be satisfied when someone other than the property’s owner is convicted. Lawmakers should close the equitable sharing loophole to prohibit law enforcement from engaging in and benefiting from forfeitures that would be disallowed under state law. And they should insist on full transparency, with clear, accurate reporting on forfeiture activity and expenditures.

Better still, lawmakers should eliminate civil forfeiture, as New Mexico and Maine have done. Instead of treating property as guilty and owners’ rights as secondary, those states’ reforms require forfeiture to be initiated as part of a criminal action against a defendant, ensuring the government has good reason to think that a specific crime was committed by a specific person and that the seized property is linked to that crime. Third-party owners whose property may be caught up can quickly seek a pretrial hearing to assert their rights. And any proceeds go to the states’ general funds instead of police and prosecutors’ budgets.

More simply, if the government is going to forfeit a person’s property, it should have to prove that person is guilty of a crime through ordinary criminal procedures, with the rights normally afforded the accused, and without a financial interest in the outcome.

As New Mexico’s experience shows, and as data and research suggest, even this strongest of reforms can bring forfeiture in line with traditional due process guarantees without putting public safety at risk.