Washington, D.C.-New Jersey’s civil forfeiture law dangerously transforms law enforcement priorities from fair and impartial administration of justice and instead into the pursuit of property and profit. How? New Jersey prosecutors and police are entitled to keep the money and property confiscated from individuals through the state’s civil forfeiture law, thus giving them a direct financial stake in the outcome of forfeiture efforts.
And New Jersey is not alone. Forfeiture laws at the federal level and in many states permit law enforcement agencies to profit directly from forfeiture laws. But an ongoing civil forfeiture case could put an end to this alarming practice in New Jersey and throughout the nation.
“Law enforcement’s responsibility should be to enforce the law fairly, not to engage in legalized bounty hunting,” said Scott Bullock, senior attorney at the Institute for Justice, a Washington, D.C.-based public interest law firm litigating the New Jersey case. “Unfortunately, New Jersey’s civil forfeiture law perverts law enforcement’s priorities by encouraging police and prosecutors to seize as much property as possible. This practice violates the Constitution and it must be stopped.”
Civil forfeiture laws, like New Jersey’s, represent one of the most serious assaults on private property rights in the nation today. This “legal fiction” allows the government, acting under sanction of law enforcement, to seize property and keep the proceeds on the flimsiest of pretenses. Under civil forfeiture, it is not necessary for the government to demonstrate that the property’s owner is guilty of criminal misconduct. Indeed, forfeiture can take place even when criminal charges have never been filed against a property owner. Making matters worse, forfeiture proceedings give the government all the advantages, while all the burdens are placed on property owners to attempt to reclaim ownership of their property.
“Governments at all levels have horribly abused the civil forfeiture power for almost two decades,” Bullock said. “Driving this abuse is the profit incentive that lies at the heart of so many of these laws.”
The battle to eliminate New Jersey’s perverse forfeiture incentive scheme is under way in a case entitled State of New Jersey v. One 1990 Ford Thunderbird, and it is led by an unlikely crusader, Carol Thomas of Millville in Southern New Jersey. Her case arose in 1999 when Thomas’s then 17-year old son used her 1990 Ford Thunderbird to sell marijuana to an undercover officer. He was arrested, eventually pleaded guilty to the charge, and faced his punishment. But that did not end the matter. In addition to pursuing the criminal case, the government also pursued Thomas’s car in a civil forfeiture proceeding even though no drugs were found in the car; she was the sole owner of the car; and she unquestionably was not aware of and did not consent to her son using her car to sell marijuana. No matter. Ironically, at the time of her son’s arrest, Thomas was a seven-year veteran officer with the Cumberland County Sheriff’s Office. Thomas has subsequently left the sheriff’s department and decided to fight abusive forfeiture laws.
New Jersey has one of the broadest civil forfeiture statutes in the country. In most states, forfeiture provisions are tied to specific criminal statutes such as drug or prostitution laws. But New Jersey’s forfeiture provisions apply to all “unlawful activity” and “illegal acts” under the New Jersey criminal code. Any criminal activity in New Jersey, except unindictable and minor crimes like disorderly person offenses, can lead to a civil forfeiture proceeding.
The amount of money generated for law enforcement through civil forfeiture is quite significant. Since laws were changed in 1984 at the federal level allowing law enforcement to keep all forfeited property, federal agencies have collected more than $7.3 billion with more than $696 million being collected in fiscal year 1998 alone. And in New Jersey, in a single six-month period between January 1998 and June 1998, the State of New Jersey alone (not including county governments) collected $1.77 million in forfeiture proceeds and distributed the bounty for such things as medical services for the state police ($128,000), confidential purposes ($60,000), and the purchase of ten vehicles and other equipment for the criminal investigation wing of the Division of Taxation ($244,967).
Concern about profit-making by law enforcement is a nation-wide issue and even led to changes at the ballot box this year. Due to successful citizen initiatives on Election Day, police and prosecutors in Oregon and Utah can no longer benefit directly from forfeiture proceedings.
“Impartiality in civil and criminal proceedings is a bedrock principle of our justice system and is guaranteed by the due process clause of the U.S. Constitution,” Bullock concluded. “In this case, we seek both to stop New Jersey from taking away Ms. Thomas’s car and to end the direct profit incentive in New Jersey’s law.”
The Institute for Justice is a libertarian public interest law firm. Through strategic litigation, training, communications, and outreach, the Institute for Justice advances a rule of law under which individuals can control their own destinies as free and responsible members of society. It litigates to secure economic liberty, school choice, private property rights, freedom of speech, and other vital individual liberties, and to restore constitutional limits on the power of government. In addition, it trains law students, lawyers, and policy activists in the tactics of public interest litigation to advance individual rights. Through these activities the Institute challenges the ideology of the welfare state and illustrates and extends the benefits of freedom to those whose full enjoyment of liberty is denied by government. The Institute was founded in September 1991 by William Mellor and Clint Bolick.