New Hampshire 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 90% of forfeiture proceeds go to law enforcement
State Forfeiture Laws
New Hampshire’s civil forfeiture laws are a threat to property owners. Earning a D-, state law only requires the government to link property to a crime by a preponderance of the evidence in order to forfeit it. But state drug law also prohibits the forfeiture of property when the owner has been found not guilty of the underlying criminal charge. And innocent owners bear the burden of proving they were not involved in the criminal use of their property. Furthermore, 90 percent of forfeiture proceeds go to law enforcement: 45 percent to local law enforcement and 45 percent to a state drug forfeiture fund. Local law enforcement may keep no more than $225,000 from a single forfeiture, and amounts in the state drug forfeiture fund in excess of $1 million must be turned over to the state general fund, encouraging agencies to spend the money while they can.
The state attorney general is required to submit biennial reports to the Legislature detailing all items seized and forfeited. However, reports simply summarize the total value of cash and other property forfeited during the biennium; the data are not disaggregated to allow further analysis, such as estimating the average value of a seized asset or the percentage of forfeiture cases that are civil as opposed to criminal. The Institute for Justice obtained more recent reports from the attorney general’s website and the rest through a New Hampshire Right-to-Know Law request. Reports indicate that the Office of the Attorney General’s Drug Unit, which serves as a clearing house for all drug-related seizures in the state, reportedly forfeited nearly $1.2 million between 1999 and 2013, or approximately $164,000 every two fiscal years.
State Law Sources
Standard of proof
Preponderance of the evidence. But no forfeiture may be maintained against a person’s interest in property if that person has been found not guilty of the underlying criminal charge. N.H. Rev. Stat. Ann. § 318-B:17-b(IV)(b), (d); State v. Pessetto, 8 A.3d 75, 79 (N.H. 2010).
Innocent owner burden
Owner. N.H. Rev. Stat. Ann. § 318-B:17-b(IV)(b).
90 percent (45 percent to local law enforcement, 45 percent to a state drug forfeiture fund), with caps. Local law enforcement may keep no more than $225,000 from a single forfeiture, and amounts in the state drug forfeiture fund over $1,000,000 must be turned over to the state general fund. N.H. Rev. Stat. Ann. § 318-B:17-b(V).
New Hampshire ranks 16th for federal forfeiture, with over $15 million in Department of Justice equitable sharing proceeds from 2000 to 2013.
State Forfeiture Data
Reported Forfeiture Proceeds
Average per biennium
Source: Reports of total value of all cash, vehicles and other property forfeited by the New Hampshire Office of the Attorney General’s Drug Unit, which prosecutes all drug-related forfeitures in the state. Reports are made each fiscal biennium (e.g., from July 1, 1999, to June 30, 2001) and are available on the attorney general’s website going back through 2005. Earlier reports were obtained by the Institute for Justice via a New Hampshire Right-to-Know Law request.
Federal Equitable Sharing
New Hampshire law enforcement’s participation in the Department of Justice’s equitable sharing program earns the Granite State a 16th-place ranking. Between 2000 and 2013, New Hampshire agencies received over $15 million in equitable sharing funds from the DOJ, averaging more than $1 million per calendar year. The lion’s share—78 percent—of proceeds came through joint task forces and investigations, the kind of equitable sharing generally exempt from new DOJ limits on the practice. Agencies also brought in almost $2.6 million in equitable sharing proceeds from the Treasury Forfeiture Fund between 2000 and 2013, averaging $184,000 per fiscal year.