New Jersey Civil Forfeiture Laws Declared Unconstitutional

February 2003

Court Seizes the Day

New Jersey Civil Forfeiture Laws Declared Unconstitutional

By Scott G. Bullock

IJ won a resounding victory in December 2002 when Superior Court Judge G. Thomas Bowen ruled that New Jersey’s method of financing police and prosecutors through civil forfeiture is unconstitutional. The decision was the first of its kind and promises to be a precedent-setting case in New Jersey and throughout the country.

As we described in the last Liberty & Law, under New Jersey’s civil forfeiture law, prosecutors and police had been 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. From 1998 to 2000, New Jersey law enforcement personnel collected an incredible nearly $32 million in property and currency through the application of the civil forfeiture law. As the judge recognized in his opinion, forfeiture money has been used for “rent for a motor pool crime scene facility, office furniture, telecommunications and computer equipment, automobile purchase, fitness and training equipment purchase, a golf outing, food, including food for seminars and meetings, and expenses of law enforcement conferences at various locations.”

IJ Client Carol Thomas on top of her 1990 Ford Thunderbird. Unwilling to let the State take her car, she took the State of New Jersey to court to protect her property and to protect the property of others from civil forfeiture.

After examining the New Jersey system, the judge ruled: “In theory and in practice, there is no limitation upon the motivation for enlargement to which a county prosecutor is subject in deciding upon seizure of property. . . . This court concludes that the augmentation of the county prosecutors’ budgets . . . provides to those in prosecutorial functions financial interests which are not remote as to escape the taint of impermissible bias in enforcement of the laws, prohibited by the Due Process clauses of the New Jersey and U.S. Constitution.”

By ruling the statute unconstitutional, the decision affects every county in New Jersey.

Judge Bowen’s decision is profoundly important because it puts a stop to the most pernicious and dangerous aspect of civil forfeiture laws: the encouragement to law enforcement to bounty-hunt rather than impartially pursue justice. The decision will ensure that police and prosecutors make decisions on the basis of justice, not on the potential for profit.

One of the things we take pride in at the Institute is litigating cutting-edge constitutional cases, challenging laws and regulations that have not been challenged before. Some might consider these impossible battles, but we provide a solid basis to the courts for striking down laws that violate fundamental constitutional guarantees, and we are willing to lead the charge in doing so. The New Jersey forfeiture case is a good example of our efforts. David Smith, an attorney who wrote the leading treatise on civil forfeiture law and who served as a top U.S. Department of Justice forfeiture official, told the Newark, N.J., Star-Ledger that the Institute for Justice’s New Jersey case was “the single most important civil forfeiture case being litigated anywhere.”

Judge Bowen’s decision will fundamentally alter the practice of civil forfeiture in New Jersey and could prove a harbinger to challenges in the more than 25 other states that have similar laws. As Mr. Smith correctly noted when hearing of Judge Bowen’s decision: “This is the first time the rotten system has been challenged, and it fell with the first assault. . . . It takes a brave judge to basically say the emperor has no clothes.” Indeed.

With so much money and power at stake, the State has already said that it will appeal the decision, but we are confident that the appellate courts will affirm Judge Bowen’s well-reasoned opinion.

Scott G. Bullock is a senior attorney at the Institute for Justice.