More than a dozen influential nonprofit organizations from across the political spectrum sent a coalition letter this week calling on Congress “to curb law enforcement’s power to use and abuse the practice of civil forfeiture by enacting strong reforms.” Under civil forfeiture, law enforcement can permanently confiscate property from innocent owners without ever charging them with a crime, let alone securing a conviction. At the federal level, about 80-90 percent of all forfeitures are conducted “administratively,” i.e. without any judicial oversight and with the seizing agency acting as judge and jury.
Driving these abuses is a perverse incentive to police for profit; federal agencies can keep the proceeds from forfeited property, giving them a strong financial motive to seize property. Over the past two decades, more than $45.7 billion was deposited into the forfeiture funds run by the U.S. Department of Justice and the Treasury Department. State and local agencies can profit too. Through “equitable sharing,” police and prosecutors can collaborate with a federal agency, evading any stricter state law protections against civil forfeiture, and collect up to 80 percent of the proceeds. Altogether, at least $68.8 billion was forfeited by state and federal agencies from 2000-2019.
“Congress must protect the civil liberties and property rights of all Americans,” said IJ Senior Attorney Dan Alban, who co-directs IJ’s National Initiative to End Forfeiture Abuse. “For nearly four decades, civil forfeiture has victimized far too many innocent property owners who never had a chance in a system that stacks the cards against them in order to send billions of dollars to law enforcement. That must end now.”
Spearheaded by the Institute for Justice, the coalition letter was sent on Monday to the Chairs and Ranking Members of the House and Senate Judiciary Committees and identified several key reforms. Short of fully abolishing civil forfeiture, Congress should end forfeiture’s “improper” incentives by redirecting all forfeiture proceeds to the Treasury’s General Fund and by dismantling the equitable sharing program. Congress must also strengthen safeguards for due process, including by raising the standard of proof, guaranteeing the right to legal representation for indigent owners, and by eliminating the administrative forfeiture system.
Although many Americans are bitterly polarized, a solid majority stands against civil forfeiture. Two-thirds of Americans (and 60 percent of Republicans) said they would be more likely to vote for a Member of Congress who wants to abolish civil forfeiture, according to a poll conducted last fall by YouGov on behalf of the Institute for Justice. Reflecting this bipartisan consensus on the dire need for forfeiture reform, the coalition letter was signed by organizations spanning the political spectrum, including the ACLU, American Commitment, Americans for Prosperity, Campaign for Liberty, DKT Liberty Project, the Drug Policy Alliance, the Due Process Institute, FreedomWorks, Goldwater Institute, LEAP, the Leadership Conference, NACDL, National Motorists Association, National Taxpayers Union, and R Street.
“It is our hope that, whether through standalone legislation, provisions included in broader criminal justice reform, or the appropriations process, this Congress will finally solve this longstanding problem,” concluded the letter.
Since the Institute for Justice began its End Forfeiture initiative in 2014, 35 states and the District of Columbia have enacted forfeiture reforms. Seven states and the District have restricted equitable sharing, limiting law enforcement’s ability to receive funding through the program and making it harder for law enforcement to circumvent state civil forfeiture laws. And in 2015, New Mexico abolished civil forfeiture, replacing it with criminal forfeiture and requiring that all forfeiture proceeds be deposited in the state’s general fund. In 2019, IJ secured a landmark victory in Timbs v. Indiana, where the U.S. Supreme Court unanimously ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on “excessive fines.”