Transparently Bad

After publishing nearly a dozen studies on forfeiture, IJ’s strategic research team has learned a great deal—not least, that there is still too much about the use of forfeiture that remains hidden from public view. Our 12th forfeiture report, Forfeiture Transparency & Accountability: State-by-State and Federal Report Cards, released in January, examines this troubling lack of transparency in forfeiture programs nationwide.

Given the vast power forfeiture confers on law enforcement agencies—and the perverse incentives it creates for them to take property—forfeiture programs should at the very least have to meet high standards of transparency and accountability. Yet nearly every state, the District of Columbia and both the U.S. departments of Justice and the Treasury fail at one or more of the basic elements of transparency and accountability graded in our study:

• Tracking seized property.
• Accounting for forfeiture fund spending.
• Statewide forfeiture reports.
• Accessibility of forfeiture records.
• Penalties for failure to file a report.
• Financial audits of forfeiture accounts.

As a result, legislators and the public are too often left in the dark about law enforcement’s forfeiture activity. For instance, few states require law enforcement to record whether forfeitures happen under civil or criminal procedures or whether individuals whose property was seized were ever charged with a crime, making it difficult to know if forfeiture is targeting real criminals or innocent property owners.

Likewise, too few states demand an accounting of how law enforcement spends the proceeds from the property it takes through forfeiture: Agencies in 33 states face no reporting requirements for their forfeiture fund spending. Permitting agencies to self-finance through forfeiture creates improper incentives and undermines the legislature’s power of the purse. Shrouding this spending in secrecy only makes these problems worse.

But our report cards don’t just tell states that they are failing—they also show them exactly what they must do to improve. States must at a minimum require that agencies carefully track the properties they seize. They must monitor spending from forfeiture funds and subject those funds to routine audit. They must compile regular statewide reports detailing forfeiture activity and spending and make those reports or other forfeiture records easily available online by law. And they must penalize agencies for failing to file those reports as required.

Working hand in hand with IJ’s model forfeiture reporting legislation, our report cards give legislators custom blueprints for putting these principles of transparency and accountability into law, just in time for the 2017 legislative sessions and at a time when interest in forfeiture reform is high.

Of course, improved transparency is not a substitute for the abolition of civil forfeiture or radical reform. It will not fix the fundamental problems with civil forfeiture—namely, the property rights abuses it permits and the temptation it creates to police for profit. As IJ has long argued, civil forfeiture should not exist in a truly free society. But improved transparency is vitally important for bringing forfeiture activity and spending into the light of day, where legislators, the public and, naturally, IJ’s strategic research team can scrutinize it and continue to build the case for ending this fundamental threat to private property rights.

View the report at https://ij.org/report/forfeiture-transparency-accountability