Arlington, Va.—It’s called policing for profit and it’s happening all across America. Oregon earned an average grade for its laws and practices compared to other states, demonstrating need for improvement.
Under a practice called “civil forfeiture,” police and prosecutors’ offices seize private property—often without ever charging the owners with a crime, much less convicting them of one—then keep or sell what they’ve taken and use the profits to fund their budgets. And considering law enforcement officials in most states don’t report the value of what they collect or how that bounty is spent, the issue raises serious questions about both government transparency and accountability.
Under state and federal civil asset forfeiture laws, law enforcement agencies can seize and keep property suspected of involvement in criminal activity. Unlike criminal asset forfeiture, however, with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to permanently lose her cash, car, home or other property.
According to the Institute for Justice—whose fight against eminent domain abuse raised that issue to national prominence—civil asset forfeiture is one of the worst abuses of property rights in our nation today. The Institute for Justice today released a first-of-its-kind national study on civil forfeiture abuse. The report—Policing for Profit: The Abuse of Civil Asset Forfeiture (http://www.ij.org/PolicingForProfitPDF)—is the most comprehensive national study to examine the use and abuse of civil asset forfeiture and the first study to grade the civil forfeiture laws of all 50 states and the federal government. The report finds, not surprisingly, that by giving law enforcement a direct financial incentive in pursuing forfeitures and stacking the legal deck against property owners, most state and federal laws encourage policing for profit rather than seeking the neutral administration of justice. (For additional resources on this report, visit: http://www.ij.org/PolicingForProfit. For a brief video on this topic, visit: www.ij.org/Forfeiture.)
Laws Stacked Against Property Owners
The report demonstrates that legal procedures make civil forfeiture relatively easy for most governments and difficult for many property owners to fight. The vast majority of states and the federal government use a standard of proof—what is needed to successfully prosecute a forfeiture action—lower than the “beyond a reasonable doubt” standard required to prove an individual was guilty of the criminal activity that supposedly justified the taking of his property. Given that situation, it is not surprising that upwards of 80 percent of forfeitures at the federal level occur absent a prosecution.
“Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head,” said Institute for Justice Senior Attorney Scott Bullock, a co-author of the report. “With civil forfeiture, your property is guilty until you prove it innocent.”
Grading Forfeiture Laws and How Government Evades Them
In Policing for Profit, IJ grades each state on its forfeiture laws and other measures of abuse. Only three states (Maine, North Dakota and Vermont) earned a grade of B or better.
Federal forfeiture law makes the problem worse with so-called “equitable sharing.” Under these arrangements, state officials can hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds—even when state law bans or limits the profit incentive. Equitable sharing payments to states have nearly doubled from 2000 to 2008, from a little more than $200 million to $400 million.
Policing for Profit was co-authored by IJ’s Scott Bullock and criminal justice researchers Drs. Marian Williams and Jefferson Holcomb of Appalachian State University and Tomislav Kovandzic of the University of Texas at Dallas. The university professors examined equitable sharing data and found clear evidence that law enforcement is acting in pursuit of profit. When state laws make forfeiture harder and less profitable, state and local law enforcement engages in more equitable sharing to circumvent the state laws.
Oregon’s Law & Practices
Oregon earned average marks for its civil forfeiture laws and practices according to IJ’s rankings. Oregon civil forfeiture laws have been the subject of much controversy and litigation over the past decade. In 2000, the voters passed a strong initiative that eliminated both the profit incentive and placed a high standard of proof on the government in civil forfeiture proceedings. Unfortunately, that initiative was put on hold while its constitutionality was challenged in court by law enforcement, where it was eventually upheld in 2006. By that time, however, law enforcement successfully advocated for both additional changes in the legislature and also for another initiative, which narrowly passed in 2008 and curtailed several of the strong reforms passed in the 2000 initiative. Thankfully for property owners, the burden has remained on the government for innocent owner claims regardless of which law or amendment was in effect. Before statutory changes were made in 2005, the government needed to show only probable cause to forfeit property. Today, to secure forfeiture of personal property, the government has to prove, only by a preponderance of the evidence, that the property is proceeds or an instrumentality of a crime committed by another person. If the property is real property, the standard of proof is clear and convincing evidence. Before 2005, law enforcement was able to keep 92 percent of proceeds for its own use. After 2005, the formula was changed so that law enforcement now keeps 63 percent. That formula remains in place after the 2008 initiative. For analysis of Oregon’s ranking, visit: http://www.ij.org/PolicingForProfit/OR.
To end policing for profit, the Institute for Justice recommends that, first, law enforcement should be required to convict people before taking their property. Law enforcement agencies could still prosecute criminals and forfeit their ill-gotten possessions—but the rights of innocent property owners would be protected. Second, police and prosecutors shouldn’t be paid on commission. To end the perverse profit incentive, forfeiture revenue must be placed in a neutral fund, like a state’s general fund. It should also be tracked and reported so law enforcement is held publicly accountable. Finally, equitable sharing must be abolished to ensure that when states act to limit forfeiture abuse, law enforcement cannot evade the new rules and continue pocketing forfeiture money.