New Jersey Appeals Court Considers Constitutionality Of Civil Forfeiture Funding Scheme

John Kramer
John Kramer · March 31, 2004

Washington, D.C.-The New Jersey Appellate Court today will hear a case that will decide whether the state’s civil forfeiture law dangerously transforms law enforcement priorities away from fair and impartial administration of justice and instead toward the pursuit of property and profit. The case before the three-judge panel of the Appellate Division examines whether 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. In December 2002, a state trial court struck down the law as unconstitutional because the provision violates the Due Process clauses of the U.S. and New Jersey constitutions.

From 1998 to 2000, New Jersey police and prosecutors collected an astonishing nearly $32 million in property and currency through the application of the state’s civil forfeiture law. During that same period, on average, close to 30 percent of the discretionary budgets of county prosecutor offices came from civil forfeiture proceeds. As Superior Court Judge G. Thomas Bowen of Salem County recognized in his opinion, forfeiture money has been used for “rent for a motor pool crime scene facility, office furniture, telecommunications and computer equipment, automobile purchase, fitness and training equipment purchase, a golf outing, food, including food for seminars and meetings, and expenses of law enforcement conferences, at various locations.”

“Property owners must be protected from this kind of conflict of interest and perverse incentive system,” said Scott Bullock, senior attorney at the Institute for Justice, a Washington, D.C.-based public interest law firm that is litigating the New Jersey case. “Police and prosecutors must make decisions on the basis of justice, not on the potential for profit.”

Judge Bowen also determined, “In theory and in practice, there is no limitation upon the motivation for enlargement to which a county prosecutor is subject in deciding upon seizure of property . . . . This court concludes, that the augmentation of the county prosecutors’ budgets . . . provides to those in prosecutorial functions financial interests which are not remote as to escape the taint of impermissible bias in enforcement of the laws, prohibited by the Due Process clauses of the New Jersey and U.S. Constitution.”

This case could prove a harbinger of future challenges to laws in other states. David Smith, an Alexandria, Va., attorney who has written a treatise on forfeiture laws and is a former deputy chief of the Department of Justice’s asset forfeiture office declared, “This is the single most important civil forfeiture case being litigated anywhere.” Several other states and the federal forfeiture law also permit police and prosecutors to keep forfeited property and proceeds.

The case, State of New Jersey v. One 1990 Ford Thunderbird, was filed by perhaps an unlikely crusader, Carol Thomas of Millville in southern New Jersey. Her case arose in 1999 when Thomas’ then 17-year-old son used her Thunderbird without her knowledge and consent to sell marijuana to an undercover officer. Her son was arrested and punished, but that did not end the matter. The State still went after the car by filing a civil forfeiture action because the car was involved in illegal activity. 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.

Thomas said, “The trial court protected my rights and the rights of all New Jersey property owners when it struck down the forfeiture law. I am hopeful the appeals court will do the same thing.”

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.