J. Justin Wilson
J. Justin Wilson · June 25, 2019

Today, the U.S. House of Representatives voted to defund a notorious federal forfeiture program when it passed a “minibus” appropriations bill (H.R. 3055) to finance the Justice Department and other federal agencies. Organized by the Institute for Justice, a bipartisan coalition of two dozen organizations, including the American Conservative Union, the ACLU, Heritage Action for America, the Leadership Conference, and the NAACP, had praised the House for unanimously approving an amendment to the minibus that would cut off funding to the so-called “adoption” program. 

Under adoption, state and local law enforcement can seize property without filing criminal charges, and then transfer the seized property to federal prosecutors for forfeiture under federal law. Adoptive seizures can occur even if they would circumvent safeguards that were enacted by state legislatures to protect property owners from civil forfeiture.

Worse, local and state agencies can collect up to 80 percent of the forfeiture proceeds, giving them a perverse financial incentive to police for profit. Between 2000 and 2016, the Justice Department distributed nearly $1 billion in federal-adoption funds to police and prosecutors nationwide.

“Civil forfeiture is one of the greatest threats to private property rights,” said Institute for Justice Senior Attorney Darpana Sheth, who heads IJ’s National Initiative to End Forfeiture Abuse. “It’s encouraging to see hundreds of representatives and numerous groups that span the ideological spectrum come together to oppose this abuse of power. The House vote is a welcome first step to rolling back federal forfeiture laws and we urge the Senate to pass the amendment.”

In January 2015, then-U.S. Attorney General Eric Holder sharply curtailed adoptive forfeitures. Unfortunately, those limits were later repealed by former U.S. Attorney General Jeff Sessions, as part of a new policy directive to “increase forfeitures” in July 2017.

To defund the adoption program, Reps. Tim Walberg (R-MI), Bobby Rush (D-IL), Jamie Raskin  (D-MD), Tony Cardenas (D-CA), Tom McClintock (R-CA), Justin Amash (R-MI), and Tulsi Gabbard (D-HI) sponsored an amendment to H.R. 3055 that was unanimously adopted last week. If enacted, their amendment effectively end adoptive seizures and forfeitures through the next fiscal year.

The House vote against adoptive forfeitures comes less than two weeks after the Senate unanimously approved a bill to stop the Internal Revenue Service from raiding the bank accounts of small-business owners with civil forfeiture. In addition, Rep. Jim Sensenbrenner (R-WI) has reintroduced the DUE PROCESS Act, which would strengthen safeguards for innocent owners, while Rep. Walberg has sponsored the FAIR Act, which would abolish equitable sharing (which includes adoption) and bar federal agencies from retaining forfeiture proceeds.

A recent study by the Institute for Justice further calls into question whether distributing hundreds of millions of dollars in forfeiture proceeds improves police effectiveness. The study—the most extensive and sophisticated of its kind—combines local crime, drug use and economic data from a variety of federal sources with more than a decade’s worth of data from the Justice Department’s equitable sharing program.

The study finds that more forfeiture proceeds do not help police fight crime. Instead, the results indicate police use forfeiture to boost revenue: A 1 percentage point increase in local unemployment—a standard proxy for fiscal stress—is associated with a statistically significant 9 percentage point increase in seizures of property for forfeiture.

“This study is a timely reminder for why Congress must take the profit incentive out of policing,” Sheth added. “Policymakers can undertake serious and much-needed forfeiture reforms without jeopardizing police effectiveness.”

Since 2014, 33 states and Washington, D.C. have enacted forfeiture reforms, with seven states and the District sharply limiting law enforcement’s ability to receive funding through equitable sharing. In February, the U.S. Supreme Court unanimously ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on “excessive fines.”