Arlington, Va.—It’s called policing for profit and it’s happening all across America.
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/PolicingForProfit)—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.)
Government at every level is in on the take and the problem is growing. For example, in 2008, for the first time in its history, the Department of Justice’s forfeiture fund topped $1 billion in assets taken from property owners and now available to law enforcement. State data reveal that state and local law enforcement also use forfeiture extensively: From 2001 to 2002, currency forfeitures alone in just nine states totaled more than $70 million. Considering this measure excludes cars and other forfeited property as well as forfeiture estimates from many states for which data were unreliable or that did not make data available for those years, this already-large figure represents just the tip of the forfeiture iceberg.
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. Likewise, many jurisdictions provide an “innocent owner” defense that allows owners to get their property back if they had no idea it was involved in a crime. But in most places, owners bear the burden of establishing their innocence.
“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. Maine earned the highest grade, an A-, largely because all forfeiture revenues go to the state’s general fund, not directly into law enforcement coffers. On the other end of the spectrum, states like Texas and Georgia both earned a D- because their laws make forfeiture easy and profitable for law enforcement—with 90 and 100 percent of proceeds awarded to the agencies that seized the property.
Federal forfeiture law makes the problem worse with so-called “equitable sharing.” Under these arrangements, state and local 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.
“Our results show that law enforcement is acting in pursuit of profit: Agencies are using federal law as a loophole to circumvent more restrictive and less profitable state laws,” said Marian Williams, Ph.D., assistant professor of government and justice studies at Appalachian State University and a co-author of the report. “This
finding is consistent with a growing body of scholarly research, news reports and even testimonials from law enforcement officers about civil asset forfeiture practices.”
• Six states earned an F and 29 states receive a D for their laws alone.
• Lax federal laws earn the federal government a law grade of D-.
• Eight states receive a B or higher for their laws: Indiana, Maine, Maryland, Missouri, North Carolina, North Dakota, Ohio and Vermont. But extensive use of equitable sharing pulls down the final grades of five of those states: Indiana (C+), Maryland (C+), Missouri (C+), North Carolina (C+) and Ohio (C-).
• The lowest-graded states overall, combining both poor laws and aggressive use of equitable sharing, are Georgia, Michigan, Texas, Virginia and West Virginia. Each received overall grades of D-.
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. New York, for example, has an average grade for its forfeiture laws as rated by IJ—but is one of the most aggressive states for equitable sharing, earning it a D.
Bullock said, “If you want reforms that will end policing for profit, you must recognize two realities. First, states should not incentivize forfeiture through laws that make it easy and profitable, as most do. But second, even when those laws are tightened, the research findings are clear: Police are using equitable sharing through the federal government as a loophole to pursue forfeitures that under state law wouldn’t be allowed or wouldn’t provide as much return. The only way, therefore, to end this growing and unaccountable use of government power is through real reforms that truly remove the profit motive and protect innocent citizens.”
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.
“Police and prosecutors should not be profiting at the expense of private property rights, and the Institute for Justice will use every tool at our disposal to expose this injustice and bring it to an end,” said IJ President and General Counsel Chip Mellor.