Asset Forfeiture Victory

March 2001

Asset Forfeiture Victory

By Scott Bullock

Carol Thomas—a former Cumberland County deputy sheriff whose own car was seized when her son was caught in a marijuana bust—has her car and her cash back, but she is not ready to give up her fight to overturn New Jersey’s unconstitutional civil forfeiture laws.  The Institute represented Thomas (and her car) not only in her successful effort to reclaim ownership of her car but also to challenge what drives civil forfeiture abuse in New Jersey and in many other states: the direct profit incentive underlying the laws, whereby police and prosecutors are entitled to keep the cash and property they seize.

With the Institute for Justice’s help, Carol Thomas won her car back after it was unconstitutionally taken from her.  She is now continuing her legal challenge to end the government’s abuse of civil asset forfeiture.

On January 19 of this year, the Institute secured an early-round victory in Thomas’ case when Superior Court Judge G. Thomas Bowen, reading from the bench, dismissed the government’s claim against her car, and ordered both the title to her car and a $1,500 bond she posted to be returned to her.  But just as important, the judge allowed a counterclaim filed by Thomas and the Institute for Justice challenging the state’s civil forfeiture law to continue in court.  Judge Bowen found that even though Thomas’ case is over, it is in the public interest to decide whether or not New Jersey’s perverse incentive structure violates the Due Process Clause of the Constitution, especially since the government has not changed its policy of distributing forfeited property to the very agencies charged with enforcing the law.

Thomas’ case, State of New Jersey v. One 1990 Ford Thunderbird, arose in 1999 when Thomas’ then 17-year-old son used her Thunderbird to sell marijuana without her knowledge or consent.  He was arrested by undercover officers, pled guilty and faced his punishment.  But that did not end the matter.  In addition to pursuing the criminal case, the prosecutor also seized Thomas’ 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.

Upon hearing of the judge’s decision in the courtroom, Thomas said:  “Of course I’m happy to get the title to my car and my bond money back, but most of all I’m happy that we’ll be able to help other people by changing this law.  I’ve won my case; now I want to make sure the state stops cashing in on the property of other innocent owners.”

Having secured the return of Thomas’ property, the Institute will now set out to demonstrate to the court how policing and prosecuting for profit violates fundamental due process guarantees.  In an in-depth article on the Institute’s case following the judge’s decision, the Asbury Park Press noted that “legal experts say the core argument in the Cumberland County case, that it is impossible for police to be impartial when they derive a direct financial benefit from their actions, may be the strongest challenge yet to the forfeiture laws.”

“I’ve won my case; now I want to make sure the state stops cashing in on the property of other innocent owners.” –Carol Thomas

The financial stakes in this battle are enormous, encouraging police and prosecutors to aggressively enforce the laws, even at the expense of innocent owners’ constitutional rights.  For instance, since the laws were changed in 1984 to allow law enforcement to keep forfeiture proceeds, federal agencies have collected more than $7.3 billion in property.

In New Jersey, forfeiture laws generate significant off-budget windfalls for law enforcement.  As the Asbury Park Press noted in the same article, the Monmouth County Prosecutor’s Office in New Jersey alone spent about $235,000 from the forfeiture fund in the year 2000, amounting to almost half of its annual operating budget, excluding salaries.  Many of the forfeiture funds are used for what could be described as “quality of life” enhancement for law enforcement.  For instance, the Monmouth County Prosecutor’s Office used money from the forfeiture fund for such items as $13,925 in expenses for a prosecutors’ convention, $1,588 for a washer and dryer, which allows forensics investigators to clean their overalls after returning from crime scenes and $3,121 for bar association dues.

Through the discovery process, the Institute is compiling the data on the amount of forfeitures in New Jersey and “following the money.”  The constitutional case will progress over the spring and summer of this year.

Scott Bullock is a senior attorney with the Institute for Justice.