Appendix A: State Law Grading Methods

The tables below include the grades each state earned on the three elements that make up the civil forfeiture law grades. Table A.1 shows the grades related to standards of proof. Only two states earned an A grade with standards equivalent to proof beyond a reasonable doubt that the property was part of a criminal act. Most states—31 of them—and the federal government earned a D grade with standards of preponderance of the evidence. Under such standards, the government need only show that it is more likely than not that the property was related to criminal conduct. Two states earned an F grade for requiring mere probable cause.

Table A.1: Standard of Proof Grades

Grade	Standard of Proof	States
A	Beyond a reasonable doubt	Nebraska, North Carolina
B+	Beyond a reasonable doubt/clear and convincing	California, Minnesota, Montana, Nevada, New Mexico, Vermont
B	Beyond a reasonable doubt/preponderance of the evidence	Missouri, Oregon*
C+	Clear and convincing	Colorado, Connecticut, Florida, Michigan, New York, Utah
C	Clear and convincing/preponderance of the evidence	D.C.
D+	Clear and convincing/ probable cause	Kentucky
D	Preponderance of the evidence	Alabama, Alaska, Arizona, Arkansas, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Mississippi, New Hampshire, New Jersey, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington, West Virginia, Wisconsin, Wyoming, Federal Government
F	Probable cause	Massachusetts, North Dakota

 

* Oregon requires a conviction and clear and convincing evidence to forfeit real property.
With respect to innocent owner claims, the federal government and most states reverse the traditional burden of proof by forcing owners to prove that they are innocent of and had no knowledge of a crime in order to regain seized property. As Table A.2 illustrates, only 10 states and the District of Columbia require the government to prove guilt in order to forfeit any type of property, thereby earning an A grade for their innocent owner burdens. Thirty-five states and the federal government earned F grades for requiring owners to establish their innocence. The other five states earned C grades, with the burden generally depending on the type of property.

Table A.2: Innocent Owner Burden Grades

Grade	Innocent Owner Burden	States
A	Government’s burden	California, Colorado, Connecticut, D.C., Florida, Mississippi, Montana, New Mexico, New York, Oregon, Utah
C	Depends on property	Alabama, Indiana, Kentucky, Maine, Tennessee
F	Owner’s burden	Alaska, Arizona, Arkansas, Delaware, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, Federal Government

Turning to the financial incentive grade, the federal government and most states allow law enforcement to keep some or all forfeiture proceeds. As shown in Table A.3, 25 states and the federal government earned F grades for enabling law enforcement agencies to keep up to 100 percent of forfeiture proceeds. Another seven states earned D grades for allowing police and prosecutors to keep between 85 and 95 percent. Only seven states and the District of Columbia earned A grades for barring forfeiture proceeds from flowing into law enforcement accounts.

Table A.3: Financial Incentive Grades

Grade	Proceeds Retained	States
A	0% to 5%	D.C., Indiana, Maine, Maryland, Missouri, New Mexico, North Carolina, Wisconsin
B	5.1% to 20%
C	20.1% to 80%	Alaska, California, Colorado, Connecticut, Louisiana, Mississippi, Nebraska, New York, Oregon, Texas, Vermont
D	80.1% to 95%	Florida, Illinois, Minnesota, New Hampshire, Rhode Island, South Carolina, Washington
F	95.1% to 100%	Alabama, Arizona, Arkansas, Delaware, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Montana, Nevada, New Jersey, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, Virginia, West Virginia, Wyoming, Federal Government

 

 

After states were assigned their respective grades, the standard of proof and innocent owner burden grades were combined into a single “burden” grade by creating a weighted average, where standard of proof accounted for 66 percent of the grade and innocent owner burden for 33 percent. These weights reflect the relative difficulty each process represents for law enforcement agencies in keeping seized properties. The burden grades were then combined with financial incentive grades into a single weighted grade by assigning a weight of one to the burden grades and a weight of three to the financial incentive grades, based on the premise that law enforcement agencies are more encouraged to pursue asset forfeiture by the percentage of forfeited assets they are allowed to keep than by the relative ease of the forfeiture process.