Arlington, Va.—It’s called policing for profit and it’s happening all across America. California’s laws and practices make it among the worst abusers in the nation.
Under a practice called “civil forfeiture,” police and prosecutors’ offices seize private property—often without ever charging the owners with a crime, much less convicting them of one—then keep or sell what they’ve taken and use the profits to fund their budgets. And considering law enforcement officials in most states don’t report the value of what they collect or how that bounty is spent, the issue raises serious questions about both government transparency and accountability.
Under state and federal civil asset forfeiture laws, law enforcement agencies can seize and keep property suspected of involvement in criminal activity. Unlike criminal asset forfeiture, however, with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to permanently lose her cash, car, home or other property.
According to the Institute for Justice—whose fight against eminent domain abuse raised that issue to national prominence—civil asset forfeiture is one of the worst abuses of property rights in our nation today. The Institute for Justice today released a first-of-its-kind national study on civil forfeiture abuse. The report—Policing for Profit: The Abuse of Civil Asset Forfeiture (https://ij.org/report/policing-for-profit/#1)—is the most comprehensive national study to examine the use and abuse of civil asset forfeiture and the first study to grade the civil forfeiture laws of all 50 states and the federal government. The report finds, not surprisingly, that by giving law enforcement a direct financial incentive in pursuing forfeitures and stacking the legal deck against property owners, most state and federal laws encourage policing for profit rather than seeking the neutral administration of justice. (For additional resources on this report, visit: https://ij.org/report/policing-for-profit/. For a brief video on this topic, visit: https://ij.org/issues/private-property/civil-forfeiture/.)
Laws Stacked Against Property Owners
The report demonstrates that legal procedures make civil forfeiture relatively easy for most governments and difficult for many property owners to fight. The vast majority of states and the federal government use a standard of proof—what is needed to successfully prosecute a forfeiture action—lower than the “beyond a reasonable doubt” standard required to prove an individual was guilty of the criminal activity that supposedly justified the taking of his property. Given that situation, it is not surprising that upwards of 80 percent of forfeitures at the federal level occur absent a prosecution.
“Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head,” said Institute for Justice Senior Attorney Scott Bullock, a co-author of the report. “With civil forfeiture, your property is guilty until you prove it innocent.”
Grading Forfeiture Laws and How Government Evades Them
In Policing for Profit, IJ grades each state on its forfeiture laws and other measures of abuse. Only three states (Maine, North Dakota and Vermont) earned a grade of B or better.
Federal forfeiture law makes the problem worse with so-called “equitable sharing.” Under these arrangements, state officials can hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds—even when state law bans or limits the profit incentive. Equitable sharing payments to states have nearly doubled from 2000 to 2008, from a little more than $200 million to $400 million.
Policing for Profit was co-authored by IJ’s Scott Bullock and criminal justice researchers Drs. Marian Williams and Jefferson Holcomb of Appalachian State University and Tomislav Kovandzic of the University of Texas at Dallas. The university professors examined equitable sharing data and found clear evidence that law enforcement is acting in pursuit of profit. When state laws make forfeiture harder and less profitable, state and local law enforcement engages in more equitable sharing to circumvent the state laws.
California’s Law & Practices
Compared to most other states, California’s forfeiture laws provide better protections to property owners and do not provide as strong of a profit incentive to law enforcement to take property according to IJ’s rankings. For the government to forfeit property in California, it must have, at a minimum, clear and convincing evidence for cash associated with criminal activity and requires a beyond a reasonable doubt standard for forfeiting real property. Furthermore, when an innocent person with an interest in the property seeks to protect that interest, the burden is on the government to show that the owner knew about the property’s illegal use. Law enforcement in California keeps 65 percent of all revenues generated through civil forfeiture. However, the behavior of law enforcement officials tells a different tale. Given that California places greater limits on state and local governments in forfeiting property, it should not be surprising that it aggressively participates in equitable sharing with the federal government, collecting an astonishing $305 million in an eight-year period from 2000 to 2008. In 2000, California legislators voted to forbid state and local agencies from using the federal equitable sharing loophole except in limited circumstances, but then-Governor Gray Davis vetoed the measure. For analysis of California’s ranking, visit: http://www.ij.org/PolicingForProfit/CA.
To end policing for profit, the Institute for Justice recommends that, first, law enforcement should be required to convict people before taking their property. Law enforcement agencies could still prosecute criminals and forfeit their ill-gotten possessions—but the rights of innocent property owners would be protected. Second, police and prosecutors shouldn’t be paid on commission. To end the perverse profit incentive, forfeiture revenue must be placed in a neutral fund, like a state’s general fund. It should also be tracked and reported so law enforcement is held publicly accountable. Finally, equitable sharing must be abolished to ensure that when states act to limit forfeiture abuse, law enforcement cannot evade the new rules and continue pocketing forfeiture money.