Abolishing the Civil Forfeiture Racket:

J. Justin Wilson
J. Justin Wilson · May 24, 2011

Arlington—Today, two leading organizations have come together to advocate for reforms to states’ asset forfeiture laws—the power of police to seize property on mere suspicion of a crime and, in most states, keep some or all of the proceeds for their own use.

The National Association of Criminal Defense Lawyers, the preeminent organization in the United States ensuring justice for persons accused of crimes, and the Institute for Justice, the nation’s premier public interest law firm defending property rights, have jointly written and will support model state legislation that replaces civil forfeiture with criminal forfeiture. Further, the legislation would redirect the proceeds of seized assets away from the law enforcement unit making the arrest.

“The quintessential truth of the American legal system is that you are innocent until proven guilty,” said David B. Smith, NACDL board member and contributor to the model legislation. “These reforms are built on that ideal. By replacing civil forfeiture with criminal forfeiture, we end the practice of a person suspected of a crime having to enter a lawsuit against his own property in civil court. We require the state to convict the person before it takes title to the seized property. If there is no conviction, the person and his property go free.”

The reform legislation also goes directly to the core issue of asset forfeiture abuse: the perverse financial incentive. The Institute for Justice estimates that proceeds to states from forfeiture now exceed $500 billion per year. In only eight states are the proceeds from forfeitures under state law deposited in the state’s general treasury or a neutral fund. In the other 42 states, local law enforcement gets at least half of the proceeds, including 26 states where 100 percent of the proceeds supplement the budgets of the law enforcement agency that seized the property.

“The potential for abuse is rooted in the potential for law enforcement profits,” says Lee McGrath, the Institute for Justice’s legislative counsel and the lead author of the model legislation. “In the private sector, profits spur entrepreneurs to provide better products at lower prices and drive innovation to the benefit of all. But in the public sector, the allure of financial benefits embedded in civil forfeiture law encourages police and prosecutors to put the pursuit of property ahead of the pursuit of justice.”

During the current legislative session, the state legislatures in California and Minnesota considered legislation to reform their asset forfeiture laws.

“This model fills a void as state legislators across the country are looking for ways to reform asset forfeiture laws that fall desperately short of due process and give the wrong incentives to law enforcement,” McGrath said. “We look forward to working with the NACDL’s state chapters to get this legislation enacted across the country.”

The model legislation is available at: http://www.ij.org/legislation/3700