ARLINGTON, Va.—Nationwide, civil forfeiture laws put innocent property owners at risk and encourage law enforcement to police for profit, with billions of dollars forfeited each year. So finds the latest edition of “Policing for Profit: The Abuse of Civil Asset Forfeiture,” released today by the Institute for Justice (IJ).
This third edition of “Policing for Profit” presents the largest ever collection of state and federal forfeiture data—17 million data points covering 45 states, the District of Columbia and the federal government. These data show forfeiture is a massive nationwide problem. Since 2000, states and the federal government have forfeited at least $68.8 billion—that we know of. Not all states provided full data, so this figure drastically undercounts property taken from people through forfeiture.
“The heart of the problem remains poor state and federal civil forfeiture laws, which are little improved since the previous edition of “Policing for Profit” was published in 2015,” said IJ Senior Director of Strategic Research and report co-author Lisa Knepper. “Most laws still stack the deck against property owners and give law enforcement perverse financial incentives to pursue property over justice.”
“Policing for Profit” grades state and federal civil forfeiture laws based on the portion of proceeds directed to law enforcement coffers and the protections offered property owners. Thirty-five states and the federal government earn a D+ or worse. New Mexico earns the report’s only A, thanks to a 2015 reform that eliminated civil forfeiture and directed all forfeiture proceeds to the state’s general fund.
Importantly, New Mexico’s reform has not compromised public safety, according to a new analysis published in the report. Compared to neighboring Texas and Colorado, New Mexico’s crime rates remained steady in the months and years following the reform, suggesting forfeiture does not deter crime and law enforcement are able to do their jobs without forfeiture proceeds.
Indeed, new data published for the first time in “Policing for Profit” indicate forfeiture rarely targets big-time criminals. Data from 21 states show half of all currency forfeitures are worth less than $1,300, hardly the stuff of vast criminal enterprises and far less than it would cost to hire an attorney to fight back. Moreover, “Policing for Profit” finds forfeiture proceeds mostly support law enforcement budgets, not crime victims or community programs. In 2018, agencies in 13 states with expenditure data spent almost no proceeds on victims and just 9% on community programs on average.
“Despite its national prevalence and popularity with police and prosecutors, civil forfeiture simply doesn’t work,” said IJ Senior Research Analyst and report co-author Jennifer McDonald. “It doesn’t fight crime, it doesn’t target criminal kingpins, and it doesn’t support crime victims or community programs.”
“Policing for Profit” also highlights a loophole that undercuts protections for property owners in states with better forfeiture laws: the federal equitable sharing program. Equitable sharing allows state and local law enforcement to seize property locally and turn it over to federal prosecutors for forfeiture under federal law—and get back up to 80% of the proceeds, regardless of state law.
Not only does equitable sharing give state and local law enforcement agencies a leg up over property owners—the resources of the federal government and its convoluted forfeiture procedures—but it also enables agencies to get around state laws that make forfeiture more difficult or less profitable for them.
This arrangement is very rewarding for law enforcement. Every year, the program pays out hundreds of millions of dollars to state and local law enforcement agencies—more than $8.8 billion from 2000 to 2019. Perhaps unsurprisingly, 70% of Americans oppose the loophole equitable sharing creates.
“No one should ever lose their property without first being convicted of a crime, but lawmakers should be especially concerned about forfeiture abuse now, as local governments face increased fiscal pressure amid the COVID-19 pandemic,” said Knepper. Research finds law enforcement agencies engage in more forfeiture when budgets are tight, suggesting the practice is even more ripe for abuse in the current economic climate.
“Policing for Profit” recommends that Congress and state legislatures protect all Americans’ property and due process rights by abolishing civil forfeiture and eliminating the perverse financial incentive it creates to police for profit. The report also recommends that Congress abolish equitable sharing and, until it does, that states prohibit their agencies from participating.
“New Mexico’s experience shows that strong forfeiture reform does not sacrifice public safety,” McDonald said. “As states and Congress look for ways to create a fairer criminal justice system, one reform everyone should be able to agree on is ending civil forfeiture and the perverse profit incentive that fuels it.”