New Jersey Forfeiture

Policing and Prosecuting For Profit: New Jersey Ex-Sheriff Fights Civil Forfeiture Abuse

New Jersey’s civil forfeiture law dangerously transforms law enforcement priorities from fair and impartial administration of justice to the pursuit of property and profit.  New Jersey police departments and prosecutors’ offices are entitled to keep money and property confiscated through the state’s civil forfeiture law, thus giving them a direct financial stake in these forfeitures.

In State of New Jersey v. One 1990 Ford Thunderbird, former Cumberland County deputy sheriff Carol Thomas of Millville, N.J., sought to reform the State’s perverse forfeiture incentive scheme. Her case arose in 1999 when Thomas’s then 17-year-old son used her Thunderbird—without her knowledge or consent—to sell marijuana to an undercover officer.  He was arrested, pleaded guilty to the charge and faced his punishment.  But that did not end the matter.  In addition to pursuing the criminal case, the Cumberland County Sheriff’s Office also pursued Thomas’s car in a civil forfeiture proceeding even though no drugs were found in the car, she bought the car with a bank loan, and she unquestionably was not aware of and did not consent to her son’s actions.  Mrs. Thomas is an unlikely crusader because at the time of her son’s arrest, she was a seven-year veteran officer with the Sheriff’s Office.  Thomas has subsequently left the force and is fighting abusive forfeiture laws.

Impartiality in civil and criminal proceedings is a bedrock principle of our justice system and is guaranteed by the due process clause of the U.S. Constitution.  The Institute for Justice won the return of Ms. Thomas’s title to her car and the trial judge ruled that the profit incentive at the core of New Jersey’s civil forfeiture violated her due process rights.  Unfortunately, that ruling was overturned by the New Jersey Appellate Court.

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The overriding goal for law enforcement officials—both prosecutors and police—should be fair and impartial administration of justice.  But New Jersey’s civil forfeiture law dangerously transforms law enforcement priorities away from this goal and instead toward the pursuit of property and profit.  How?  New Jersey prosecutors and police are entitled to keep the money and property confiscated from individuals through the state’s civil forfeiture law, thus giving them a direct financial stake in the outcome of forfeiture efforts.  Such a statutory scheme perverts law enforcement’s responsibility to enforce the law fairly and spells disaster for innocent property owners caught up in forfeiture proceedings.

Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today.  This legal doctrine allows the government acting under sanction of law enforcement to seize property and keep the proceeds on the flimsiest of pretenses.  Under civil forfeiture, it is not necessary for the government to demonstrate that the property’s owner is guilty of criminal misconduct.  Indeed, forfeiture can take place even when criminal charges have never been filed against a property owner.  Making matters worse, forfeiture procedures give the government all the advantages, while all the burdens are placed on property owners to attempt to reclaim ownership of their property.

All levels of government for almost two decades have horribly abused the civil forfeiture power.  The Institute for Justice is now involved in a case in southern New Jersey that represents an all-too-typical abuse of forfeiture laws.  The case, State of New Jersey v. One 1990 Ford Thunderbird, [1] presents an opportunity not only to regain the property of an innocent owner faced with forfeiture, but also to challenge what often drives forfeiture abuse: the direct financial incentive in forfeiture laws for police and prosecutors to maximize the number of seizures.

Taking From Innocent Owners to Give to Law Enforcement Agencies

The Institute represents Carol Thomas of Millville, New Jersey, the owner of a 1990 Ford Thunderbird.   The case arose when Ms. Thomas’s then 17-year-old son used her car to sell marijuana to an undercover officer.  He was arrested, eventually pleaded guilty to the charge, and faced his punishment.  But that did not end the matter.  In addition to pursuing the criminal case, the government also pursued Thomas’s car in a civil forfeiture proceeding even though no drugs were found in the car; she bought the car with a bank loan she secured; and she unquestionably was not aware of and did not consent to her son using her car to sell marijuana.  No matter.  Under New Jersey forfeiture law, the government can still pursue the forfeiture action because of the legal fiction that the car is guilty of a crime.

Given the facts of this case, Thomas’s profession at the time of her son’s arrest is somewhat surprising: she was a seven-year veteran officer with the Cumberland County Sheriff’s Office.  During that time, she had actually served on certain occasions with the county’s narcotics task force, the same unit that arrested her son and seized her car.  Thomas has subsequently left the sheriff’s department and has decided to fight abusive forfeiture laws.

Similar to the law at the federal level and in several states, forfeited property and proceeds in New Jersey are given to prosecutors’ offices and police departments.  Seizing and prosecuting agencies are thus granted a direct and significant stake in the outcome of forfeiture efforts, encouraging the government to seize as much property as possible.  Not only does this scheme pervert law enforcement’s responsibility to enforce the law fairly (and transform it into a form of legalized bounty hunting), it often sweeps up wholly innocent individuals, like Ms. Thomas, in forfeiture proceedings.

Such schemes also raise serious constitutional concerns.  Fundamental to the Constitution’s due process guarantee is that the government act in an impartial manner in the administration of justice.  The due process clause of the U.S. Constitution prohibits statutory schemes, like New Jersey’s civil forfeiture law, that create actual bias, the potential for bias, or even the appearance of bias in the administration of justice.  In representing Thomas, the Institute seeks to stop New Jersey from taking her car while also ending the direct, perverse profit incentive at the heart of forfeiture laws.

A Brief History of Civil Forfeiture

Under laws at both the federal and state levels, governments can forfeit property either under criminal or civil law.  Criminal forfeiture is tied to the criminal conviction of an individual.  But civil forfeiture is a legal fiction that treats inanimate objects used by someone in furtherance of criminal activity as if the objects themselves acted to assist in the commission of a crime.  That is why civil forfeiture proceedings have bizarre titles, such as United States v. $10,500 in U.S. Currency or Commonwealth of Pennsylvania v. A Parcel of Land and Buildings or, as in Ms. Thomas’s case, State of New Jersey v. One 1990 Ford Thunderbird.  Civil forfeiture actions are in rem proceedings, which means literally “against a thing.”

Of course, objects such as cash, property, cars, or boats sued for participation in criminal activity do not act or think.  The doctrine of in rem forfeiture arose from Medieval ideas, rooted in the ancient law of “deodand.” [2]   Kings, for instance, could seize an instrument that caused the death of another in order to finance the deceased’s funeral mass. [3]   The idea arose from a superstitious belief that objects acted independently to cause death. [4]   While the concept of deodand gives rise to the “guilty property” legal fiction, American forfeiture law did not arise strictly from this concept, but rather from the British Navigation Acts of the mid-17th century. [5]   The Acts were passed during England’s vast expansion as a maritime power.  The Acts required imports and exports from England to be carried on British ships.  If the Acts were violated, the ships or the cargo on board could be seized and forfeited to the crown regardless of the guilt or innocence of the owner.

Using the British statutes as a model, the first United States Congress passed forfeiture statutes to aid in the collection of customs duties, which provided 80-90% of the finances for the federal government during that time. [6]   Civil or in rem forfeitures were introduced in American law through these early customs statutes.  The forfeiture power was upheld in early Supreme Court cases. [7]   The most important aspect of these early forfeiture cases, however, is the justification provided for the application of civil forfeiture even to innocent property owners.  The Supreme Court held that civil forfeiture was closely tied to the practical necessities of enforcing admiralty, piracy, and customs laws.  In rem forfeiture permitted courts to obtain jurisdiction over property when it was virtually impossible to obtain personal jurisdiction over the property owners guilty of violating maritime law.  Therefore, the government could ensure that customs and other laws were enforced even if the owner of the ship or the cargo was outside the court’s jurisdiction.  Justice Story wrote that the “vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner.” [8]   However, Story justified such forfeitures “from the necessity of the case, as the only adequate means of suppressing the offence or wrong, or insuring an indemnity to the injured party.” [9]

Civil forfeitures were released from their historical moorings during the Civil War.  The Confiscation Acts allowed the Union to seize and forfeit the rebels’ Northern property and the property of those who aided the Confederacy. [10]   In 1862, the Supreme Court of Kentucky declared the Acts unconstitutional and presciently observed that “[t]hese in rem proceedings may today be the engines of punishment to the rebels, but, in the future, they may be the instruments of oppression, injustice, and tyranny. . . .” [11]   Numerous challenges to these Acts were mounted and eventually the Supreme Court agreed to address the constitutional issues.  In 1871, the Acts were upheld against Fifth and Sixth Amendment challenges. [12]   Upholding the Confiscation Acts in the face of constitutional attack worked “a revolution in forfeiture law that persists to this day–use of the in rem action without constitutional limitation.  It is unlikely that such a change would have occurred had it not been for the passions raised by the Civil War.” [13]

Although the Supreme Court had permitted the government to expand the forfeiture power, throughout most of the 20th Century, civil forfeiture remained a relative backwater in American law, with one exception: it was used extensively during Prohibition against automobiles and other vehicles transporting illegal liquor.   Modern civil forfeiture use exploded during the early 1980s as government at all levels stepped up the War on Drugs.  No longer is civil forfeiture tied to the practical necessities of enforcing maritime law and to the difficulties of obtaining personal jurisdiction over an individual.  Released from its historical limitation as a necessary means of enforcing admiralty and customs laws, the forfeiture power has instead become one of the most powerful weapons in the government’s crime-fighting arsenal.  And, as described below, the forfeiture power is not limited to fighting the Drug War.  It has grown to include a plethora of crimes at the federal and state levels.

Modern Civil Forfeiture Laws

At the federal level alone, over 200 forfeiture statutes exist, allowing confiscation of private property for federal crimes ranging from drug offenses, mail fraud, and immigration violations to illegally collecting the feathers of a migratory bird and failing to report to the IRS money order purchases of over $3,000. [14]    Not surprisingly, the vast powers granted to governments under forfeiture laws have led to widespread abuse, documented in numerous studies and investigations throughout the 1990s. [15]   Wholly innocent individuals or individuals with attenuated connection to illegal activity saw their property taken by the government with very little recourse.  In the early 1990s, the Pittsburgh Press (now the Pittsburgh Post-Gazette) exposed how the police subvert the rule of law, target minorities, and kill small businesses to fund the war on drugs through the use of civil forfeiture. [16]   The Orlando Sentinel showed how lax civil forfeiture laws helped create the Volusia County Sheriff’s Department extortion racket along Interstate 95. [17]   And CBS’s 60 Minutes stunned the nation with the story of Donald Scott, who was killed in a botched drug raid by local, state and federal police who hoped to seize his $5 million dollar ranch. [18]

And the abuses of forfeiture laws continue.  In March 1999, Jim and Amba Patel had their hotel forfeited and sold because drugs had been sold on the premises.  Despite the motel owners’ attempts to keep drug dealers off the premises by installing floodlights and fences and calling the police, their property was nevertheless taken. [19]   No charges were filed against the Wichita, Kansas couple, because, as U.S. Attorney Jackie Williams noted: “the most effective way to deal with the Patels themselves was to go the civil route, where the burden of proof is somewhat less than in a criminal case.” [20]   As Supreme Court Justice Clarence Thomas noted, the numerous horror stories of property owners caught in the web of government’s enormous forfeiture power has spawned “distrust of the Government’s aggressive use of civil forfeiture statutes.”  [21]

Law enforcement chooses civil forfeiture because the deck is stacked against property owners.  In civil proceedings, for instance, the government only needs to prove the property’s connection to allegedly criminal activity by a mere “preponderance of evidence” standard, not proof “beyond a reasonable doubt” as in criminal cases. [22]   Because it is the property itself that is the target of the lawsuit, the owner of the property need not be convicted of or even charged with any criminal activity for the government to forfeit the property.   Indeed, one study found that approximately 80% of persons whose property was seized by the federal government for forfeiture were never even charged with a crime. [23]   Moreover, property can be forfeited even if someone used the property without the owners’ knowledge or consent. [24]

Drawing on the long tradition of civil forfeiture in American law (but ignoring its original intent as a necessary means of enforcing maritime law), the Supreme Court recently upheld the forfeiture of wholly innocent owners’ property in its notorious decision in Bennis v. State of Michigan. [25]   There, the government successfully forfeited a woman’s car when her husband, unbeknownst to her, used it to engage the services of a prostitute.  Federal forfeiture laws and some state statutes, including New Jersey’s, have provisions that allow innocent owners to try to get their property back, but the hurdles are high and many property owners simply cannot afford the costs of fighting forfeitures of their property.

New Jersey has one of the broadest civil forfeiture statutes in the country.  In most states, forfeiture provisions are tied to specific criminal statutes such as drug or prostitution laws.  But New Jersey’s forfeiture provisions apply to all “unlawful activity” and “illegal acts” under the New Jersey criminal code. [26]   Any criminal activity in New Jersey, except unindictable and minor crimes like disorderly person offenses, can lead to a civil forfeiture proceeding.

In New Jersey forfeiture proceedings, a person who has property seized for forfeiture can try to secure release of the property pending the outcome of the forfeiture, but must post a bond with the court in the amount of the market value of the seized item. [27]   In order to enforce the forfeiture, the government must file a civil lawsuit against the property sought to be forfeited within 90 days of the initial seizure of the property.  Any person making a claim to the seized property must answer the complaint within 35 days.  If no answer is filed to the complaint, then the property is automatically forfeited to the government. [28]

Moreover, New Jersey allows a particularly tenuous connection between the forfeited property and any possible criminal activity.  In New Jersey, proof of criminal activity by the property owner or anyone else is not required under the law.  For instance, New Jersey courts have held that even an unexplained large amount of cash by itself can be persuasive evidence of illegal drug activity and thus lead to forfeiture of the cash. [29]   Moreover, New Jersey courts have upheld forfeitures of cash even when neither drugs nor drug paraphernalia were found. [30]   Courts have held that the absence of any requirement that a person be charged or convicted of a crime before forfeiture is permissible because the proceedings are civil, directed at the property itself and not against a person who has committed wrongdoing. [31]

In reality, few property owners can meet the burdens of civil forfeiture proceedings and often do not challenge seizures of their property.  This is especially true when government seizes property the value of which would be greatly exceeded by the time, attorney fees, and other expenses necessary to fight the forfeiture.  For instance, Carol Thomas’ Thunderbird is only valued at $1500.  As a result, many property owners do not and cannot challenge forfeitures, and the government obtains the property by default.

The unfairness of forfeiture proceedings and the abuse of civil forfeiture laws at the federal and state levels prompted the U.S. Congress to change the procedures to give greater protections to property owners.  On April 25, 2000, President Clinton signed civil forfeiture reform legislation passed by wide margins in the Senate and House, which, among other protections, raised the burden of proof in federal forfeiture proceedings and allowed property owners more time to challenge forfeiture before losing their property by default.  But these changes at the federal level have no impact on state civil forfeiture laws.  Moreover, even at the federal level, one aspect of civil forfeiture was not changed, and indeed it is this aspect of civil forfeiture that is in most desperate need of reform: the direct profit incentive granted to prosecutors and police to forfeit as much property as possible.

Perverse Incentives under Federal and New Jersey Civil Forfeiture Law

In 1984, Congress passed the Comprehensive Crime Control Act, vastly expanding both the powers of government to seize and forfeit private property while also adding forfeiture provisions to numerous federal criminal statutes.  Perhaps most significantly, Congress also established the Assets Forfeiture Fund, administered by the U.S. Department of Justice, and charged with collecting and distributing proceeds from forfeitures. [32]   Previously, all proceeds from forfeitures exceeding $5 million were transferred to the general fund of the Treasury. [33]   The 1984 changes eliminated the ceiling and allowed unlimited proceeds to be placed in the fund for exclusive use by law enforcement agencies. [34]   The 1984 amendments also revolutionized civil forfeiture by allowing federal forfeiture proceeds to be shared with state and local law enforcement agencies. [35]

After law enforcement agencies were granted a direct financial incentive to initiate and prosecute forfeiture actions, the use of the new statute and revenues generated by civil forfeiture skyrocketed.  Proceeds from civil forfeiture jumped from $27 million in 1985 to $644 million in 1991, an increase of over 1500%. [36]   Two forfeiture funds currently exist at the federal level: the Department of Justice fund covering forfeiture proceeds generated by DOJ agencies such as the Drug Enforcement Administration and the FBI; and the Treasury Forfeiture Fund, covering forfeitures by Treasury Department agencies such as the Bureau of Alcohol, Tobacco and Firearms. [37]   In fiscal year 1998 alone, over $448 million in forfeiture deposits were placed in the DOJ fund, while $248 million was deposited in the Treasury Fund. [38]   Since 1986, more than $5.5 billion have been deposited in the DOJ fund and over $1.8 billion in the Treasury fund. [39]   Under federal law, the property and proceeds from these forfeiture funds are retained and used for “law enforcement” purposes by the “seizing agencies.” [40]   This form of “revenue enhancement” is outside the normal appropriation and budget processes. [41]

The system outlined above creates a perverse incentive structure for law enforcement officials.  The intent of such laws was to deprive criminals of their ill-gotten property and cash and then use those proceeds to enforce the very laws the wrongdoers violated.  The unintended consequence of this effort, however, was that many officials now view raising revenue—not enforcing the law fairly and justly—as the primary goal of their activities.  A recent study found that “numerous law enforcement agencies now rely on forfeitures to fund a significant part of their operations.” [42]   Under federal forfeiture laws, the more an agency seizes and successfully forfeits, the richer it becomes.  As Gary Schons, a former California Deputy Attorney General observed: “Much like a drug addict becomes addicted to drugs, law enforcement agencies have become dependent on asset forfeitures.  They have to have it.” [43]   Memoranda issued by various officials at the federal level through the 1990s highlight the goal of revenue by encouraging “increased forfeiture production,” actions that can be taken to “maximize deposits to the [Asset Forfeiture] Fund,” and threats to cut agency funding if “projected levels of forfeiture deposits” were not met.” [44]   One former director of the Justice Department’s Asset Forfeiture Office candidly admits: “We had a situation in which the desire to deposit money into the asset forfeiture fund became the reason for being for forfeiture, eclipsing in certain measure the desire to effect fair enforcement of the laws.” [45]

In many states, the perverse forfeiture incentive structure is the same as, if not even worse, than at the federal level.  Some states, such Iowa and Vermont, correctly require forfeiture proceeds to be deposited into the state’s general fund, and then elected officials decide how the money is going to be spent.  But in most states, including New Jersey, forfeiture proceeds are funneled directly back to the very agencies and offices that are charged with enforcing the law.  Not surprisingly, some of the very same types of abuses that occur on the federal level also take place with alarming frequency on the state and local level.  The seizure of Donald Scott’s ranch, mentioned previously, where Scott was shot dead in front of his wife and no drugs were ever found on his property was, the Ventura County District Attorney’s office found, “motivated, at least in part, by a desire to seize and forfeit the ranch for the government.” [46]   Moreover, in the late 1990s, it was exposed that local law enforcement in Louisiana fabricated drug crimes to seize innocent people’s property, and then the police used the proceeds for ski trips to Aspen, Colorado. [47]   In 1999, the Kansas City Star uncovered how local law enforcement officials turned forfeitures over to the federal government for prosecution in order to avoid the state law requirement that forfeiture proceeds go to the public schools.  The federal government and state officials then divided up the forfeiture bounty amongst themselves. [48]

In New Jersey, law enforcement also keeps the forfeited property, with similar consequences.  Under New Jersey law, the forfeited property and proceeds are used exclusively for law enforcement purposes. [49]   Seizing and prosecuting agencies in New Jersey are thus granted a direct financial stake in the outcome of forfeiture efforts.  New Jersey only maintains publicly available figures (compiled for six-month periods) for forfeiture on the state level and only for drug offenses. [50]    But even with this limited information available, the state’s figures indicate the wide scope of civil forfeiture.  For example, between January and June 1996, state law enforcement officials (excluding county law enforcement agencies) seized and forfeited $2.49 million dollars in cash and 34 vehicles worth over $300,000. [51]

It is up to the county prosecutor or State Attorney General, whoever is prosecuting the case, to determine which law enforcement agencies get what percentage of the property or proceeds from forfeiture, based upon the agency’s involvement in the prosecution of the forfeiture case.  The Attorney General has wide discretion to determine what constitutes a “law enforcement purpose.” [52]   For instance, between January 1998 and June 1998, the state collected $1.77 million in forfeiture proceeds.  Among the proceeds distributed were:  $373,000 for “Asset Maintenance,” $128,000 for “medical service of enlisted personnel,” $60,000 for “Confidential Purposes” and $244,967 to the Division of Taxation, Office of Criminal Investigation for the purchase of ten vehicles and other equipment. [53]

Likewise, at the county level, prosecutors distribute forfeited assets and proceeds for a wide variety of supposed law enforcement purposes, from new vehicles to conference and travel expenses, at the discretion of the county prosecutor.  The Asbury Park Press recently reported on a county auction in which “Camaros, Firebirds, Porsches, and BMWs from the county prosecutor’s drug forfeiture unit” will be on sale. [54]   And a spokesman for the Mahwah, New Jersey police department stated this year in regard to money seized from a Canadian couple that had not been indicted, “We’re very excited about getting the money because we’ll be able to do things we wouldn’t normally be able to do.” [55]   With the proceeds, the Mahwah police stated that they would purchase a pickup truck and laptop computers for their officers. [56]   Not surprisingly, officials tend to stretch the definition of what constitutes “law enforcement purposes.”  Until the state legislature started investigating, New Jersey county prosecutors and the state attorney general routinely spent forfeiture funds for prosecutor conventions.  For instance, over a three-year period, over $500,000 in forfeited funds went for entertainment and other expenses at prosecutor conventions, including $2,800 spent to hire Mr. Peanut to greet prosecutors and their families at the Trump Regency Ballroom. [57]   Captain Steve Terry of the Atlantic County’s Prosecutor’s Office explained the expenditure: “You can’t expect these people to come to Atlantic City and not be greeted by Mr. Peanut.” [58]

Litigation Strategy

Whether operating in the public or private spheres of life, individuals tend to promote their self-interest in any given instance. [59]   A key distinction, however, is that in the private, voluntary sphere, self-interested transactions usually generate mutually beneficial outcomes because they are consensual.  Conversely, the coercive nature of government action requires constraints to be placed on self-interest through clearly defined and strictly enforced constitutional rules.  The Framers of the Constitution recognized this natural proclivity of self-interest and the need for institutional restraints on government action:

If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary. . . .  A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. [60]

Through the due process clause of the Constitution, the Founders guaranteed impartiality in civil and criminal proceedings and established fair and impartial decision-making as a bedrock principle of our justice system.

While many individuals within a government organization may share a principled commitment to carrying out the mission of the agency, government officials, operating in what they perceive as their own self-interest, will also attempt to maximize the size and budget of their agency.  Larger budgets will benefit everyone within an agency through higher salaries, greater job security, better equipment, and increased power and prestige.  The incentive to maximize a department’s budget through improper action is particularly strong in the context of civil forfeiture.  Such incentives can affect even the most well-intentioned law enforcement officers.

When public officials and their agencies have a direct financial stake in the outcome of their actions, as in the case of civil forfeiture, the Supreme Court subjects such actions to particularly close scrutiny under the due process guarantees of the Constitution. [61]   In Marshall v. Jerrico, Inc., [62] for instance, while upholding civil penalty provisions under the Fair Labor Standards Act, the Supreme Court declared that “[a] scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.” [63]   Such serious questions are raised, in part, when a government official’s “judgment will be distorted by the prospect of institutional gains as a result of zealous enforcement efforts.” [64]

The due process clause can be violated even if the official does not receive a direct personal benefit from a particular scheme, so long as an agency or department directly benefits.  Also, the relevant inquiry is whether a scheme creates a possible temptation to distort the justice system for monetary gain, rather than proven biased results in particular instances.  To determine whether a prosecutorial scheme such as New Jersey’s civil forfeiture law violates the due process clause, the Supreme Court has set forth three relevant factors: the financial dependence of law enforcement agencies on the collected revenues, the personal interest of the officials or agencies in the scheme, and the funding formula mandated and used by the government. [65]

New Jersey’s civil forfeiture law violates all three of these factors.  First, under New Jersey’s civil forfeiture statute, law enforcement agencies at the state and local levels can and do fund their activities through forfeiture.  Second, law enforcement agencies receive direct tangible benefits from forfeiture, such as increased law enforcement budgets, medical services, overtime pay, conference attendance, use of seized vehicles, purchase of new vehicles, etc.  Third, the departments are reimbursed based not on the expenses incurred in undertaking the forfeiture, but rather on the basis of how much property was seized and forfeited.  The more seizures and forfeitures the departments undertake, the higher the reward.   New Jersey’s method of distributing forfeited property and proceeds creates at a minimum the potential for or the appearance of bias if not actual bias in the forfeiture of individuals’ property and violates the right of property owners to impartial justice guaranteed by the due process clause of the Fifth Amendment.

This case, State of New Jersey v. One 1990 Ford Thunderbird (and Carol Thomas) is in Cumberland County Superior Court.  Although the State of New Jersey has filed the action against the car, Ms. Thomas has filed a counterclaim in the suit, challenging the law’s requirement that forfeited property and proceeds be funneled back to the very agencies and offices charged with enforcing the law.  The counterclaim states that this requirement violates the due process clauses of the U.S. and New Jersey Constitutions.  By removing the perverse incentive structure behind New Jersey’s civil forfeiture law, this lawsuit seeks to reorient law enforcement priorities away from profit-making and back to fair and impartial administration of justice.  Our hope is to establish a constitutional precedent that will restrain government abuses at the federal, state, and local levels.

Litigation Team

The lead lawyer for the Institute for Justice in this case is Senior Attorney Scott Bullock.  Joining in the litigation team is Institute President and General Counsel William H. Mellor and Managing Director Deborah Simpson.  We are joined by able local counsel Joseph M. Chiarello of Jacob, Ferrigno and Chiarello in Millville, New Jersey.

For more information contact:

John Kramer

Vice President for Communications

Institute for Justice

901 N. Glebe Road, Suite 900

Arlington, VA 22203

(703) 682-9320

The Institute for Justice is a Washington, D.C.-based public interest law firm.  It advances a rule of law under which individuals control their destinies as free and responsible members of society.  Through strategic litigation, training, and outreach, the Institute secures greater protection for individual liberty, challenges the scope and ideology of the Regulatory Welfare State, and illustrates and extends the benefits of freedom to those whose full enjoyment of liberty is denied by government.  The Institute was founded in September 1991 by William Mellor and Clint Bolick.

[1]   Docket No. CUM-L-000720-99 (N.J. Superior Court, Law Division, Cumberland County, 1999).

[2] Boudreaux & Pritchard, Civil Forfeiture and the War on Drugs: Lessons from Economics and History, 33 San Diego L. Rev. 79, 94 (1996).

[3] Id.

[4] Id.

[5] Id.; Schecter, Fear and Loathing and the Forfeiture Laws, 75 Corn. L. Rev. 1151, 1154 (1990); Maxeiner, Bane of American Forfeiture Law—Banished at Last?, 62 Corn. L. Rev. 768, 772 (1977) (hereinafter “Maxeiner”).

[6] Maxeiner, 62 Corn. L. Rev. at 782 n.86.

[7] See, e.g., The Palmyra, 25 U.S. (12 Wheat.) 1 (1827).

[8] See United States v. Brig Malek Adhel, 43 U.S. (2 How.) 210, 233 (1844).

[9] Id. (emphasis added).

[10] Maxeiner, 62 Corn. L. Rev. at 786-787.

[11] Norris v. Doniphan, 61 Ky. (4 Met.) 385, 426 (1863).

[12] Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1871).

[13] Maxeiner, 62 Corn. L. Rev. at 787.

[14] Copeland, “Civil Forfeiture for the Non-Lawyer,” U.S. Dep’t of Justice, Bureau of Justice Assistance Forfeiture Project, Spring 1992.

[15] An excellent summary of these reports is contained in a 1999 Policy Briefing on Asset Forfeiture written by Scott Ehlers, Senior Policy Analyst at the Drug Policy Foundation (hereinafter “Ehlers”).

[16] Ehlers at 8.

[17] Id.

[18] Id.

[19] Id.

[20] Hegeman, “Agencies Split Motel Sale Proceeds, Former Owners Cry Foul,” Associated Press, March 20, 1999.

[21] U.S. v. James Daniel Good Real Property, 114 S.Ct. 492, 515 (1993) (Thomas, J., concurring and dissenting).

[22] Hyde, Forfeiting Our Property Rights 6-7 (1995) (hereinafter “Hyde”).

[23] Cited in Hyde at 6.

[24] Hyde, at 6-8.

[25] 116 S.Ct. 994 (1996).

[26] N.J.S.A. § 2C:64-1

[27] N.J.S.A. §§ 2C:64-3e-g.

[28] N.J.S.A. § 2C:64-3e.

[29] State v.$7,000, 642 A.2d 967 (N.J. 1994).

[30] Id.

[31] State v. One 1988 Honda Prelude, 599 A.2d 932 (N.J. App. Div. 1991).

[32] 28 U.S.C. § 524(c)(1).

[33] See Fried, Rationalizing Criminal Forfeiture, 79 J. Crim. L. & Criminology 328, 364 (1988).

[34] 28 U.S.C. § 524(c)(4).

[35] 28 U.S.C. § 853(i)(4).

[36] See U.S. Dep’t of Justice, Federal Forfeiture of the Instruments and Proceeds of Crime: The Program in a Nutshell 1 (1990).

[37] Ehlers at 4.

[38] Id.

[39] Id.

[40] 28 U.S.C. § 853(i)(4).

[41] 28 U.S.C. § 524(c)(1).

[42] Blumenson & Nilsen, Policing for Profit: The Drug War’s Hidden Economic Agenda, 65 U. Chi. L. Rev. 35, 40 (1998) (hereinafter “Blumenson & Nilsen”).

[43] Ehlers at 3.

[44] Blumenson & Nilsen, 65 U. Chi. L. Rev. at 63-64 n. 103.

[45] Ehlers at 7.

[46] Hyde at 14-15.

[47] Ehlers at 8.

[48] Dillon, “Police Keep Cash Intended for Education,” Kansas City Star, January 2, 1999.

[49] N.J.S.A. § 2C:64-6a.

[50] N.J.S.A. §§ 2C:35-1 et seq., 2C:36-1 et seq.

[51] Figures supplied by the State of New Jersey Department of Law and Public safety in the compliance with New Jersey’s Appropriations Act.

[52] See N.J.S.A. § 2C:61-1a.

[53] Figures supplied by the State of New Jersey Department of Law and Public Safety in compliance with New Jersey’s Appropriations Act.

[54] Method, “Porsches to Perfume on the Block at Annual County Auction,” Asbury Park Press, July 10, 1998.

[55] Gaudiano, “Drug Arrest Turns Into Windfall for Mahwah Police,” The Record, May 18, 2000.

[56] Id.

[57] Moore & Consoli, “Seized Funds Pay for Frills,” The Record, December 31, 1995.

[58] Id.

[59] See Buchanan & Tullock, The Calculus of Consent (1962) (seminal treatment of the implications of the self-interest axiom for public policy decision-making).

[60] The Federalist No. 51 (James Madison).

[61] See Tumey v. Ohio, 273 U.S. 510 (1927) (overturning fine where mayor, who also sat as a judge, personally received a share of the fines); Ward v. Village of Monroeville, 409 U.S. 57 (1972) (due process violated where substantial portion of town’s income came from fines imposed by town mayor sitting as judge).

[62] 446 U.S. 238, 249-50 (1980)

[63] Id.

[64] Id. at 250.

[65] Id. at 250-52.

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