If you were crafting a compelling case for why civil forfeiture should be eliminated, it would look a lot like a recent editorial by the Kansas City Star. The editorial lays out a near-perfect argument until the very end, when it declares that civil forfeiture shouldn’t be eliminated. As the nation’s foremost experts on forfeiture, the Institute for Justice (IJ) is here to clear up what seems to be some confusion between civil forfeiture and its cousin, criminal forfeiture.
The editorial makes several strong points, including the argument that everyone should be treated as innocent until proven guilty and that civil forfeiture can unfairly target minorities. However, the piece seems to falter near the end when it states that civil forfeiture shouldn’t be eliminated because, “… Kansas law enforcement agencies should have the tools they need to disrupt the illegal drug trade and other criminal activity.”
Civil forfeiture and criminal forfeiture are two drastically different tools. Civil forfeiture allows law enforcement to seize and keep an individual’s property without ever having to charge them with a crime. In Kansas, for example, prosecutors must prove by a preponderance of evidence that a piece of property is connected to a crime (well below the criminal burden of beyond a reasonable doubt), as documented in IJ’s “Policing for Profit” report. Additionally, Kansas law enforcement authorities are heavily incentivized to use civil forfeiture because state law allows them to keep up to 100% of the proceeds.
The practice of civil forfeiture often violates Americans’ constitutional rights, subjects property owners to an astonishing lack of due process that affords them fewer protections than criminal defendants, and creates a money-making scheme for local, state, and the federal government to profit from.
For people like Stephen Lara, that means their entire life savings could be taken despite never doing anything wrong. Lara, a Marine driving through Nevada to see his family, had his life savings seized by Nevada Highway Patrol during a traffic stop in February 2021. Police never arrested Lara nor did they charge him with a crime. His only alleged offense was passing a tanker truck too closely. Nevertheless, police left Lara on the side of the road without enough money to even afford the gas needed to drive home.
Civil forfeiture doesn’t help police solve crime or stop drug use, despite claims from law enforcement. There’s no evidence that civil forfeiture leads to greater policing effectiveness or that it reduces drug use, as IJ’s “Does Forfeiture Work?” report and “Fighting Crime or Raising Revenue” report found. In fact, IJ found that a greater use of forfeiture is actually associated with a reduction in clearance rates for violent crimes, probably because law enforcement is devoting more resources to revenue generation than to solving crimes.
Indeed, research suggests law enforcement agencies often pursue forfeiture to make money rather than fight crime, as IJ’s “Fighting Crime or Raising Revenue” report documented. Police often increase their forfeiture activity when department budgets are tight because most states allow agencies to keep a majority of the proceeds that come from forfeiture. In 2018 alone, 42 states, the District of Columbia, and the U.S. departments of Justice and the Treasury forfeited over $3 billion.
Additionally, as the editorial correctly notes, this country was founded on the principle that an individual is innocent until proven guilty. That doesn’t square with the civil forfeiture process in most states, which does not require that property owners even be charged with a crime to forfeit their property. In fact, in most states, civil forfeiture laws allow police to seize property from individuals who are completely innocent of any wrongdoing but whose property might be connected to a crime because of someone else’s actions. In those cases, states like Kansas place the burden completely upon the property owner to prove their innocence to recover the seized property.
Besides, if police want to use forfeiture to fight crime, they can use criminal forfeiture–that way, they are sure to target only convicted criminals and not innocent Americans. Criminal forfeiture takes place during the sentencing phase of a criminal trial and requires a criminal conviction before the government can keep someone’s property. Four states—Maine, Nebraska, New Mexico, and North Carolina—only permit law enforcement to take property through criminal forfeiture and have suffered no ill effects as a result. In New Mexico, for instance, IJ found there was no significant increase in crime rates (or decrease in arrest rates) after the state eliminated civil forfeiture.
The Kansas City Star’s editorial ends by stating clearly that it believes in every individual’s fundamental right to be treated as innocent until proven guilty. Civil forfeiture tramples over that principle and many of Americans’ other civil liberties. That’s why we at IJ believe civil forfeiture should be eliminated, and we hope the Kansas City Star agrees.