What is Civil Forfeiture?
Civil forfeiture is a power that lets police departments, sheriff’s offices, and other law enforcement agencies seize and keep cash, cars, and even homes, without ever charging the owner with a crime. Once a property has been forfeited, many states and the federal government let the seizing agencies keep at least some—and sometimes even all—of the proceeds to pad their budgets. That creates a perverse incentive for agencies to police for profit and chase cash instead of criminals.
In contrast, under criminal forfeiture, property can only be forfeited suspect has been convicted, prosecutors usually must bear the burden of proof and show that the property at hand are the proceeds or instrumentality of the crime committed by the suspect. The prosecutor may allege that the forfeiture of property is a sanction related to the underlying crime for which the suspect is charged, or is an additional and separate criminal charge, or as part of sentencing consideration.
What’s the difference between seizure and forfeiture?
Although related, seizure and forfeiture are distinct. Seizure happens first and is the physical taking of property. If a law enforcement officer has probable cause to believe that property is associated with crime, then the officer can seize (or take physical possession of) the property. The law enforcement agency then stores the property in an evidence room or in an impound lot, before referring the case to prosecutors, who can then file criminal charges and/or pursue civil forfeiture.
Forfeiture, on the other hand, is about whether title to property—already seized and in law enforcement’s physical possession—should be permanently transferred from the property owner to the government.
How is Civil Forfeiture Constitutional?
Allowing the government to permanently confiscate an innocent person’s life savings or their home seems like a clear-cut constitutional violation. Unfortunately, the Supreme Court has effectively carved out multiple exceptions to the Bill of Rights for civil forfeiture.
Civil forfeiture laws in the United States today date back to English admiralty law. At first, civil forfeiture was strictly limited to a narrow set of cases, like collecting customs duties and fighting piracy on the high seas. Since the owners of the vessels were usually outside of the country, it was almost impossible to extradite and prosecute those owners in criminal court.
So instead, the ships themselves were seized under the legal fiction that they were “guilty” property. As a result, civil forfeiture is an in rem proceeding, which means cases are filed against the property, not the property owner. That explains why civil forfeiture cases have bizarre names like State of Oklahoma v. $53,234 Cash, United States v. 434 Main Street, Tewksbury, Massachusetts, or State of New Jersey v. One 1990 Ford Thunderbird, which were all forfeiture cases IJ litigated.
But throughout the 20th Century, particularly during Prohibition and the War on Drugs, the Supreme Court issued decisions that significantly expanded the scale and scope of civil forfeiture. One of the most infamous rulings was Bennis v. Michigan. Tina Bennis jointly owned a $600 Pontiac with her husband John. But when John was arrested for soliciting sex workers with their Pontiac, prosecutors in Michigan filed to forfeit the car as a “public nuisance.”
Tina sued. She was a completely innocent co-owner and did not know and certainly did not consent to her husband using their car for criminal activity. Forfeiting her interest in their car, she argued, violated her right to due process, as guaranteed by the Fourteenth Amendment, and was an unconstitutional taking, in violation of the Fifth Amendment.
In 1996, a divided Supreme Court disagreed. “Michigan’s failure to provide an innocent-owner defense,” Chief Justice William Rehnquist wrote for the majority, was “without federal constitutional consequence.” Even though the chief justice acknowledged that Tina “did not know that her car would be used in an illegal activity that would subject it to forfeiture,” he explained that forfeiting her property was still permitted because “forfeiture also serves a deterrent purpose distinct from any punitive purpose.” By allowing the government to forfeit property from innocent owners, the Supreme Court’s decision in Bennis greatly expanded civil forfeiture.
Less than three months later, the Supreme Court undermined another key constitutional protection. United States v. Ursery centered around the Double Jeopardy Clause of the Fifth Amendment, which protects individuals from being punished twice for the same crime. Overturning two lower appellate court decisions, the High Court ruled against defendants who had been convicted on drug charges and then had their property taken in a civil forfeiture proceeding. In Ursery, the Supreme Court held that civil forfeiture did not count as “punishment…for the purposes of the Double Jeopardy Clause” and upheld those convictions and forfeitures.
Fortunately, the Supreme Court has recently signaled it may be open to other constitutional challenges to civil forfeiture. In Timbs v. Indiana, the Supreme Court unanimously ruled that the Excessive Fines Clause of the Eighth Amendment applies to civil forfeitures conducted by state and local governments.
Who’s at risk of losing their property to Asset forfeiture?
There are two types of owners involved in forfeiture cases: suspects, or those alleged to have been involved in the crime, and third-parties, or those who merely own the property allegedly used in the crime. To forfeit the suspect’s property, the government must show that the property was either used by the suspect to commit or facilitate crime or that the property is or derived from proceeds of the crime.
Third parties include spouses, parents, neighbors, vehicle-leasing companies, or creditors. Once third parties have shown that they have an interest in the seized property and the government shows the property was connected to a crime, the question is whether the third-party owner knew about the illegal use of their property to commit a crime. This question of knowledge is also known as an “innocent owner” defense. (Somewhat confusingly, only third-party owners can raise an innocent-owner defense, even though the suspects themselves may never be accused of any criminal wrongdoing.)
But unlike in criminal cases, where defendants are presumed innocent until proven guilty, in many states and on the federal level, third-party owners generally must prove that they did not know about their property being used in criminal activity, flipping the presumption of innocence straight on its head.
Does Asset forfeiture help police fight crime?
In short, no.
To test whether forfeiture fights crime or instead encourages law enforcement to “police for profit,” the Institute for Justice conducted a study, Fighting Crime or Raising Revenue? that combines more than a decade’s worth of data from the nation’s largest forfeiture program, the Department of Justice’s equitable sharing program, with local crime, drug use and economic data from a variety of federal sources.
More forfeiture funds do not translate into more crimes solved or less drug use, strongly suggesting forfeiture is not the valuable crime-fighting tool proponents claim. On the contrary, when local economies suffer, forfeiture activity increases, indicating police may make greater use of forfeiture when local budgets are tight.
Notably, the study examined both civil and criminal forfeitures. If all forfeiture has little effect on crime fighting, civil forfeiture alone—which requires neither convictions nor even charges—is likely to be even further removed. And the results call into question the wisdom of financial incentives baked into both civil and criminal forfeiture laws.
Instead of abolishing civil forfeiture entirely, some states have passed laws that require a criminal conviction before civil forfeiture. Is there a difference between this conviction provision and criminal forfeiture?
Yes. There is a massive difference.
Today, 16 states have criminal conviction provisions to permanently confiscate property with civil forfeiture—but only in limited circumstances. Though well-intentioned, these reforms are not the same as criminal forfeiture. Maine, Nebraska and New Mexico have ended civil forfeiture outright and exclusively use criminal forfeiture. Similarly, aside from racketeering cases, North Carolina only permits criminal forfeiture.
States with a conviction prerequisite for civil forfeiture maintain a two-track process: The suspect is prosecuted in criminal court, while forfeiture of their or a third-party’s property is litigated in civil court. As a civil proceeding, civil forfeiture lacks many of the safeguards found in criminal cases, like the right to an attorney, requiring proof beyond a reasonable doubt, or protection against self-incrimination.
Most troubling of all, these conviction prerequisites for civil forfeiture do little to help owners in the overwhelming majority of forfeiture cases. Depending on how the statute is written, property can be forfeited, so long as someone—not necessarily the owner—is convicted of a crime related to the property.
For instance, Philadelphia infamously tried to use civil forfeiture to take Christos and Markela Sourovelis’s home, after their son pleaded guilty to selling $40 worth of drugs. So even if Pennsylvania had a conviction prerequisite for civil forfeiture, it still would not have would not have prevented this attempted forfeiture and would not prohibit some of the most egregious abuses against third-party owners.
Moreover, property owners (both suspects and any third-party owners) often must file a claim for their own property. If they fail to do so, their property often can be automatically forfeited (usually known as a “default” judgement), regardless of whether the owner was convicted or not.
Minnesota provides a sobering example. Back in 2014, the state enacted a law that requires a criminal conviction or its equivalent to forfeit property in civil court. Yet its impact has been minimal. Drug and DUI-related cases account for nearly 90% of all of the state’s forfeitures, but in 2018, less than a fifth of drug and DUI-related forfeiture cases were challenged in court. In fact, per the linked report, between 2014 and 2018, the number of completed forfeitures had actually increased by nearly 18%.
Several states (most notably Michigan and Wisconsin) go one step further and expressly exempt unclaimed or uncontested property from their conviction requirements for civil forfeiture. Since many seizures involve small dollar amounts, well below the cost of hiring an attorney, it often does not make financial sense to hire one. That leaves a vast number of owners with little choice but to walk away without ever filing a claim and fighting back in court.
A process that better protects due process and private property rights is criminal forfeiture, where the forfeiture is part of the criminal case. Unlike the two-track system that preserves civil forfeiture, under criminal forfeiture, suspects do not have to file their own claims for their property. (Third-party owners, on the other hand, do have to file claims in both civil and criminal forfeiture cases.)
However, without proper limits, even criminal forfeiture laws can raise significant due process concerns, including the potential for excessive fines, a lack of prompt post-seizure hearings, and a financial incentive to “police for profit.”