Policing for Profit
Civil forfeiture threatens the constitutional rights of all Americans. Using civil forfeiture, the government can take your home, business, cash, car or other property on the mere suspicion that it is somehow connected to criminal activity—and without ever convicting or even charging you with a crime. Most people unfamiliar with this process would find it hard to believe that such a power exists in a country that is supposed to recognize and hold dear rights to private property and due process of law.
Civil forfeiture has all the hallmarks of an inviting target for public-interest litigation and advocacy: a cutting-edge legal controversy, sympathetic property owners who have little or no involvement in criminal activity, and simple, outrageous facts that show ordinary Americans facing the loss of their property.
The Institute for Justice has made combating civil forfeiture a top priority in our work to restore constitutional protections for private property rights. And with the publication of this new edition of Policing for Profit: The Abuse of Civil Asset Forfeiture, we document in the greatest detail possible the sweep of the forfeiture power.
The seeds of forfeiture abuse were sown in 1984 when Congress expanded federal civil forfeiture laws and created a financial incentive for law enforcement to forfeit property. Before then, all forfeited cash and proceeds from forfeited property had gone to the general fund of the U.S. Treasury. But starting in the mid-1980s, forfeiture revenue instead went to a newly created fund controlled by federal law enforcement. As a result, all federal forfeiture revenue can go back to the very agencies charged with enforcing the law, giving them a financial stake in forfeiture efforts. State and local agencies can also participate in forfeiture with the feds and receive a cut of the revenue through the benign-sounding “equitable sharing” program. Around the same time, many states followed Congress’ lead and broadened their own state forfeiture laws while also adding incentives to police for profit.
Not surprisingly, the use of forfeiture at the federal and state levels exploded once profit incentives kicked in. And tales of abuse began to pour in. Throughout the early 1990s, newspapers such as the Pittsburgh Press and Orlando Sentinel and news programs like 20/20 featured investigative series and exposés highlighting the confiscation of property from owners never convicted of or even charged with a crime.
IJ’s involvement with civil forfeiture began only two years after our founding when we filed an amicus brief with the U.S. Supreme Court in United States v. James Daniel Good, critiquing civil forfeiture from a property rights perspective. In 1993, the Court issued an important ruling protecting the due process rights of certain property owners caught up in civil forfeiture. And the majority opinion contained this stirring language: “Individual freedom finds tangible expression in property rights.”
But just three years later, the Court chipped away at those rights. In Bennis v. Michigan, another case in which IJ participated as amicus, the Court ruled that the government could use civil forfeiture to take property from wholly innocent third-party owners without violating constitutional guarantees of due process or property rights protections. The ruling shocked Americans and led to increased pressure for better protections for property owners in civil forfeiture cases.
IJ, along with other groups from across the political spectrum, responded by advocating for forfeiture reform. These calls, combined with outrage over such terrible decisions as Bennis, led Congress to pass the Civil Asset Forfeiture Reform Act in 2000. Among other things, CAFRA eliminated the requirement that owners post a bond before being able to contest a civil forfeiture action in court, and it provided for attorney’s fees for successful defenses against forfeiture, though only under limited circumstances.
This second edition of Policing for Profit highlights the continued need for forfeiture reform. Updated grades for state and federal civil forfeiture laws find that protections against unjust forfeitures still range from bad to worse, and too many laws incentivize revenue generation over the impartial administration of justice.
But CAFRA did little to counter the Supreme Court’s Bennis ruling and, most tellingly, did nothing to change how forfeiture proceeds are distributed or to reduce law enforcement agencies’ pecuniary interest in civil forfeiture. Nor did it change any state laws, most of which also give law enforcement a direct and perverse financial incentive to seize property for forfeiture.
What happened in the wake of CAFRA’s passage is a familiar Washington, D.C., tale. Believing the forfeiture problem was fixed, many in the Capitol and the media turned their attention elsewhere.
But forfeiture continued apace. In the wake of 9/11, with the new powers afforded law enforcement, forfeiture activity and the revenue it generated skyrocketed. And when the recession hit in the late 2000s, and governments at all levels faced significant budgetary shortfalls, law enforcement agencies had even more of an incentive to raise revenue through forfeiture.
Meanwhile, IJ launched a major property rights initiative whose lessons would bear fruit in the fight against civil forfeiture. In challenging eminent domain abuse—where local governments use their condemnation power not for a traditional public use, like a road or public park, but for private economic development—IJ took a vitally important but relatively obscure issue that affected the property rights of tens of thousands of Americans and brought it to national prominence using all the components of our program: litigation, strategic research, communications, grassroots activism and legislative advocacy.
One of our most effective tools was Public Power, Private Gain, a path-breaking report that documented over 10,000 instances of governments taking or threatening to take homes, small businesses, churches and other private property in order to give them to other, wealthier private owners. The report demonstrated that eminent domain abuse was a nationwide problem that demanded attention and action.
We knew a similar report on civil forfeiture could raise the profile of the issue and document the extent of the problem. So in 2010, after several years of research, IJ published another trailblazing national report: Policing for Profit: The Abuse of Civil Asset Forfeiture. Publication of the report coincided with the launch of IJ’s initiative to challenge civil forfeiture using all aspects of public-interest litigation and advocacy.
The report demonstrated just how widespread forfeiture had become—and how deplorable most states’ laws were at protecting property rights. The report also found that when laws make civil forfeiture easier and more profitable, law enforcement engages in more of it.
Policing for Profit received significant attention at the outset, and media interest in the issue has since grown exponentially. In 2013, The New Yorker published a searing piece on forfeiture that drew national attention. The following year, a Washington Post investigative series exposed abusive cash seizures on highways and drew on IJ’s forfeiture research. Later in 2014, HBO’s John Oliver ranted against civil forfeiture in a scathingly funny yet substantive segment, which at the time of this publication had received over six million views on YouTube.
In the meantime, IJ pursued cutting-edge litigation aimed at fundamentally changing forfeiture law while also demonstrating its real-world consequences for property owners. We also developed model legislation to help lawmakers seeking to bring an end to forfeiture abuse.
Thankfully, lawmakers are once again taking note. In the past year alone, New Mexico and Washington, D.C., passed very strong reforms, other states passed modest reforms, and Congress has taken a renewed interest in federal reform. Opposition from law enforcement, however, is fierce, especially in the face of efforts to stem the flow of forfeiture money into agency coffers. In 2015, 13 bills were introduced to reform civil forfeiture in Texas—one of the worst states in the country on this issue—but massive pushback from state and local law enforcement killed every one of them. Such opposition to change will likely intensify in the coming years.
This second edition of Policing for Profit highlights the continued need for forfeiture reform. Updated grades for state and federal civil forfeiture laws find that protections against unjust forfeitures still range from bad to worse, and too many laws incentivize revenue generation over the impartial administration of justice. This edition also shows—with far more extensive data than previously available—that law enforcement’s use of forfeiture continues to grow. Furthermore, this second edition shines a spotlight on the appalling lack of transparency in the use of forfeiture and its proceeds. Despite the risks to democratic decision-making in allowing law enforcement agencies to self-fund, most civil forfeiture laws lack basic transparency requirements, keeping the public and lawmakers in the dark about forfeiture activity and spending from forfeiture funds.
We hope this updated and expanded edition of Policing for Profit will continue to raise awareness of the injustices of civil forfeiture and further the drive for reform. We will not rest until civil forfeiture is either radically reformed or—even better—abolished.
—Scott Bullock, Institute for Justice senior attorney