Just as IJ elevated school choice, eminent domain abuse and campaign finance restrictions to become issues of national prominence, we are poised to do the same with one of the most serious assaults on property rights in the nation today: the abuse of civil asset forfeiture laws.
Civil forfeiture allows the government to seize property and keep the proceeds on the flimsiest of pretenses. As IJ documented in our new report, Policing for Profit: The Abuse of Civil Asset Forfeiture, which I co-authored with several leading scholars, for the first time in its history, the Department of Justice’s forfeiture fund recently topped $1 billion in assets taken from property owners and now available to law enforcement. And that is just one government entity; governments at every level from cities to counties to states and the federal government are in on the take—taking property from individuals who, in many instances, have never been arrested for any crime, much less convicted of one. And while individuals are presumed innocent until proven guilty, when it comes to civil forfeiture, the government turns that concept on its head, requiring that owners prove that their property is “innocent”—or else lose it.
What drives this widespread practice? Police and prosecutors’ offices usually get to keep most or all of the proceeds from this seized and sold bounty, helping to fund their budgets. By giving law enforcement a direct financial incentive in pursuing forfeitures and by stacking the deck against property owners, most state and federal laws encourage policing for profit, not justice.
Indeed, in Policing for Profit, we graded the states on their forfeiture laws and other measures of abuse. Only three earned a grade of B or better. Maine earned the highest grade, an A-, largely because all forfeiture revenues go to the state’s general fund, not law enforcement coffers. On the other end of the spectrum, states like Texas and Georgia both earned a D- because their laws make forfeiture easy and profitable for law enforcement—with 90 and 100 percent of proceeds awarded to the agencies that seized the property.
Federal forfeiture law makes the problem worse with so-called “equitable sharing.” Under these arrangements, state and local officials hand over forfeiture prosecutions to the federal government to pursue and then get back up to 80 percent of the proceeds—even when state law bans or limits the profit incentive.
In fact, my co-authors of Policing for Profit, criminal justice researchers Drs. Marian Williams and Jefferson Holcomb of Appalachian State University and Tomislav Kovandzic of the University of Texas at Dallas, examined equitable sharing data and found clear evidence that law enforcement is acting in pursuit of profit. They concluded that when state laws make forfeiture harder and less profitable, law enforcement engages in more equitable sharing. New York, for example, has average forfeiture laws according to IJ’s grades—but is one of the most aggressive states for equitable sharing, earning it a D.
Compounding these problems, most states fail to collect data about the use of forfeiture or its proceeds, thereby creating a system that is opaque, unaccountable and ripe for abuse.
Policing for Profit is the latest report from IJ’s Strategic Research program and will serve as a jumping-off point for litigation and other advocacy for needed reforms.
First, law enforcement should be required to convict people before taking their property. Law enforcement agencies could still prosecute criminals and make them forfeit their ill-gotten possessions—but the rights of innocent property owners would be protected. Second, police and prosecutors should not be paid on commission. To end the profit incentive, forfeiture revenue must be placed in a neutral fund like a state’s general fund. Finally, there must be greater transparency and equitable sharing must be abolished to ensure that when states act to limit forfeiture abuse, law enforcement cannot evade the new rules and keep on pocketing forfeiture money.
With Policing for Profit as a major new weapon, the Institute for Justice will fight in courts, legislatures and the court of public opinion to ensure that police and prosecutors are not profiting by taking property from people who have not been convicted of any crime.
Scott Bullock is an IJ senior attorney.