Policing for Profit

The widespread failure of civil forfeiture laws to protect property owners from unjust forfeitures—or to provide the barest essentials of transparency regarding law enforcement’s forfeiture activity or spending—makes plain the pressing need for reform.

The cost and difficulty of navigating a complex legal process to fight a forfeiture, plus the often low values of property seized, deter many from seeking their day in court. But making it to court unlocks a whole new set of challenges: Low legal standards of proof prevail throughout the country, with fewer than a dozen states requiring law enforcement to meet anything approaching the standard required in criminal proceedings. Indeed, federal and most state civil forfeiture laws merely require the government to show that property is slightly more likely than not related to a criminal violation—a far cry from proof beyond a reasonable doubt.

Most jurisdictions also force innocent property owners to prove their innocence in order to recover property. These owners are third parties—a parent, a spouse, even a landlord or motel owner—entirely disconnected from any crime who nonetheless must prove that they did not consent to or know about the alleged criminal activity involving their property. Between low standards of proof and poor protections for innocent owners, most civil forfeiture laws create an unlevel playing field, where it is easy for the government to take property, but hard for people to fight for it back.

Adding fuel to the fire are the financial incentives built into federal and most state civil forfeiture laws that encourage police and prosecutors to pursue property, even at the expense of other law enforcement priorities. Forty-three states direct at least 45 percent of forfeiture proceeds to law enforcement funds, typically those of the very agencies that seized the property. Twenty-five states and the federal government direct up to 100 percent to law enforcement funds. These funds may be spent largely at law enforcement’s discretion, subject only to loose controls and little to no oversight. From the little that is publicly reported, these funds are sometimes even spent on salaries, overtime and benefits, creating a still more troubling conflict of interest.

All of that would be bad enough, but the federal government’s equitable sharing program makes the country’s civil forfeiture landscape even worse. Even when states raise the bar and lower incentives for civil forfeiture, law enforcement can use equitable sharing to continue generating forfeiture revenue. Indeed, research shows that when faced with stricter and less generous state civil forfeiture laws, police and prosecutors circumvent them by turning to the federal government.

Such research offers compelling evidence not only that federal equitable sharing is used to evade more protective state laws but also that incentives matter to law enforcement—that when decisions are made about civil forfeiture, the ease of the process and, especially, the possibility of a financial reward are key factors. This is a dangerous reality given that allowing law enforcement to self-generate revenue undermines democratic controls, distorts law enforcement priorities and puts property owners at risk.

To protect the innocent and ensure the impartial administration of justice, civil forfeiture reform is desperately needed at the federal and state levels. The most substantive reform would be to abolish civil forfeiture outside certain narrow and strictly defined parameters, such as customs law. In all other cases, governments should have to tie forfeiture of property to the criminal convictions of specific owners. New Mexico’s 2015 reforms demonstrate how this can be accomplished.

Short of ending civil forfeiture altogether, at least five reforms can increase protections for property owners and improve transparency. First, lawmakers should eliminate any financial incentive for law enforcement to seize property. Civil forfeiture revenue should flow into a city, county or state’s general revenue fund or another neutral fund, such as one for education. Recent reforms in New Mexico and the District of Columbia show that this is eminently possible.

Second, lawmakers should adopt a high standard of proof for law enforcement to forfeit property in civil proceedings. Ideally, standards should be raised to beyond a reasonable doubt, bringing them in line with the rest of the American criminal justice system. States that already meet that standard or that come close to it include Nebraska, North Carolina, California, Minnesota, Montana, Nevada, New Mexico and Vermont.

Third, consistent with recent changes in Montana and D.C., lawmakers should introduce meaningful protections for people making innocent owner claims. The government should have to prove that owners consented to or possessed knowledge of the crime that led to the seizure of their property. Such reform would restore the presumption of innocence that prevails in criminal proceedings.

Fourth, lawmakers should adopt strong, standardized forfeiture reporting requirements in line with the best practices described in the previous sidebar. Though some states have recognized the need for greater transparency, 1 shoddy reporting and inadequate detail remain the rule, and the public and lawmakers remain in the dark about most forfeiture activity and spending. States without robust reporting requirements should institute them, and they should ensure that requirements are followed with consequences such as financial sanctions for noncompliance.

Finally, Congress should abolish the federal equitable sharing program. And until it does, state lawmakers should prohibit agencies from receiving equitable sharing funds. In states that disallow policing for profit under their own laws, agencies should not be able to thwart the will of their citizens by conspiring with the federal government to keep the money flowing. In 2015, New Mexico and D.C. took important steps toward this type of reform.

Taken together, such reforms would contribute significantly to protecting one of the most important rights enshrined in the Constitution. As James Madison famously wrote in 1792, “Government is instituted to protect property of every sort…. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own” (emphasis in original). 2 To the extent that governments, through their laws, fail in their duty to protect the property rights of citizens, their leaders are obliged to reform the laws to accord with the protections guaranteed in the Constitution. Elected representatives who take an oath to protect and defend the state and federal constitutions could do no better.