Higher bar to forfeit property and conviction required for some forfeitures
Stronger protections for innocent third-party property owners
60% of forfeiture proceeds go to law enforcement
State Forfeiture Laws
New York’s civil forfeiture laws are not the nation’s worst, earning a C, but law enforcement is able to bypass them through equitable sharing activity so extensive it is surpassed by that of only two states. For drug crimes, which typically draw the greatest amount of forfeiture activity, the government must prove that an individual committed a crime by clear and convincing evidence. Then the government must connect seized property to that crime by a preponderance of the evidence in order to forfeit it. Most other non-drug crimes generally require a criminal conviction. And in innocent owner claims the government bears the burden of proving that a claimant had knowledge of or involvement in the crime giving rise to the forfeiture. New York law enforcement keeps 60 percent of all forfeiture proceeds—one of the lower incentives nationally but still a significant reason to seize.
New York law enforcement agencies are required to report “the disposal of property and collection of assets” to the Division of Criminal Justice Services, which makes annual reports to the Legislature and publishes them online. Reports could be improved with the addition of itemized lists of forfeited assets, detailed breakdowns of forfeiture fund expenditures, and other key details. Between 1997 and 2013, New York agencies reported forfeiting an astounding $367 million, averaging $21.6 million per calendar year.
State Law Sources
Standard of proof
Generally, forfeitures must be based on a criminal conviction. For drug crimes, however, a criminal conviction is not necessary and the government need only establish that a drug crime has occurred by clear and convincing evidence and then connect property to that crime by a preponderance of the evidence in order to forfeit it. N.Y. C.P.L.R. §§ 1310(5)–(6), (9)–(10), 1311(3)(a)–(b)(McKinney); Hendley v. Clark, 543 N.Y.S.2d 554, 556 (N.Y. App. Div. 1989).
Agencies are required to make annual forfeiture reports to the Division of Criminal Justice Services, which must provide aggregate annual reports to the Legislature. N.Y. C.P.L.R. § 1349(4)(McKinney); N.Y. Exec. § 837-a(6)(McKinney). http://www.criminaljustice.ny.gov/ops/docs/
New York ranks 49th for federal forfeiture, with over $437 million in Department of Justice equitable sharing proceeds from 2000 to 2013.
State Forfeiture Data: Reported Forfeiture Proceeds
Task Forces & State Agencies
Average per year
Source: Calendar-year forfeiture reports obtained online from the Division of Criminal Justice Services. Reports include data submitted to the division by all law enforcement agencies. Data represent the value of all cash forfeitures and the sale value of forfeited property; they do not represent the value of property that is forfeited but not sold.
Federal Equitable Sharing
New York agencies apparently work around the Empire State’s lower profit incentive and better-than-average property rights protections through the Department of Justice’s equitable sharing program, which allows agencies to retain up to 80 percent of forfeiture proceeds. New York agencies’ participation in the program ranks 49th out of the 50 states and the District of Columbia. Agencies received a whopping $437.5 million in DOJ equitable sharing proceeds between 2000 and 2013—more than $31 million each calendar year. Eighty-five percent of proceeds stemmed from joint task forces and investigations, equitable sharing practices largely unaffected by former Attorney General Holder’s 2015 policy change. Moreover, proceeds have displayed an upward trend over the years, starting at $24 million in 2000 and exceeding $67 million in 2013. New York agencies also brought in $174.6 million from the Treasury Department’s equitable sharing program between fiscal years 2000 and 2013.proceeds totaled $4.5 million across the 2000 to 2013 fiscal years, averaging almost $325,000 a year.