Policing for Profit

Delaware earns a D- for its civil forfeiture laws

Low bar to forfeit and no conviction required

Poor protections for innocent third-party property owners

As much as 100% of forfeiture proceeds go to law enforcement

State Forfeiture Laws

The First State has some of the worst civil forfeiture laws in the country. Scoring a D-, Delaware’s forfeiture laws automatically assume that seized property is forfeitable—unless an owner can prove by a preponderance of the evidence that it is not. Innocent owners also bear the burden of demonstrating that they had nothing to do with the criminal activity with which their property is alleged to be associated. In addition, Delaware law enforcement has an enormous incentive to seize property: Up to 100 percent of revenues deriving from forfeiture go into the Special Law Enforcement Assistance Fund. From there, they are distributed to the agencies that forfeited them.

Making the situation even more dangerous for Delawareans, law enforcement has no statutory obligation to publicly account for its forfeiture activity. The Institute for Justice was unable to acquire the SLEAF accounting records because the fund’s special advisory committee—made up of state and local law enforcement officers—is, by statute, not a public entity and therefore not subject to the Delaware Freedom of Information Act.

State Law Sources

Standard of proofGovernment must show probable cause, at which point a rebuttable presumption in favor of forfeiture arises, which an owner can rebut by a preponderance of the evidence.
Del. Code Ann. tit. 16, § 4784(c)–(j); Brown v. State, 721 A.2d 1263, 1265 (Del. 1998); In re One 1987 Toyota, 621 A.2d 796, 799 (Del. Super. Ct. 1992).
Innocent owner burdenOwner.
Del. Code Ann. tit. 16, §§ 4784(a)(7), 4785(a); Brown v. State, 721 A.2d 1263, 1265 (Del. 1998).
Profit incentive5Up to 100 percent.
Del. Code Ann. tit. 11, §§ 4110–4111; id. tit. 16, § 4784(f)(3).
Reporting requirementsNone.

Delaware is the 6th best state for federal forfeiture, with over $7 million in Department of Justice equitable sharing proceeds from 2000 to 2013.

State Forfeiture Data

No data available. Agencies are not required to track or publicly report.

Federal Equitable Sharing

Perhaps because Delaware’s laws are already so generous to law enforcement, state and local agencies make fairly limited use of the Department of Justice’s equitable sharing program, ranking sixth nationally. Delaware law enforcement collected $7.8 million between 2000 and 2013 through the DOJ program. More than two-thirds of assets seized and forfeiture proceeds received derived from joint task forces and investigations with the federal government. This type of equitable sharing was largely left intact when the DOJ announced policy changes in early 2015. Between fiscal years 2000 to 2013, Delaware law enforcement also garnered about $1.3 million—nearly $90,000 a year—from the Treasury Department’s equitable sharing program.ging almost $325,000 a year.

(calendar years)
(fiscal years)
Average Per Year$560,020$89,571