Appendix A: State Law Grading Methods

The tables below include the grades each state earns on the three elements that make up the civil forfeiture law grades: (1) standard of proof, (2) innocent owner burden and (3) financial incentive.

Table A.1 shows the grades related to standards of proof. Only three states earn an A grade for having actually or effectively abolished civil forfeiture and replaced it with criminal forfeiture, which requires proof of a property owner’s guilt beyond a reasonable doubt. One state, Florida, earns a C+ for requiring that property’s connection to criminal conduct be proved beyond a reasonable doubt. Nine states demand clear and convincing evidence of property’s links to crime, an intermediate standard that earns a C grade. A plurality of states—20—and the federal government earn a D grade with a standard of preponderance of the evidence. Under this standard, the government need only show that it is more likely than not that property is related to a crime. One state, Massachusetts, earns an F grade for requiring mere probable cause, the same low standard needed to justify an arrest, carry out a search or seize property in the first place. The District of Columbia and Kentucky earn C- and D+ grades, respectively, for mixed standards.

Fifteen states have conviction provisions ranging from weak to strong, and these provisions were factored into their standard of proof grades. While such provisions fall short of criminal forfeiture, their inclusion generally resulted in a slight improvement over the grade a state would have received based on its standard of proof alone.

Missouri and Montana earn a B grade for strong conviction provisions that require an owner’s conviction—even if the owner does not contest forfeiture—and have no property-based limits. Connecticut’s moderate conviction provision earns a B-. It requires a conviction, though not necessarily that of an owner, and applies even if an owner does not contest forfeiture. Connecticut’s provision has no property-based limits, though the grading rubric allows for them. The other 12 states earn a C+ grade with weak conviction provisions that do not require conviction of an owner and can be waived by a non-owner or when an owner fails to contest forfeiture. Some set property-based limits.

Table A.1: Standard of Proof Grades

* Florida does not have a conviction provision; its standard is beyond a reasonable doubt.
^† The District of Columbia and Maryland have weak conviction provisions that apply to only a single type of property. New York has a weak conviction provision that applies only to non-drug cases. These provisions were not factored into those states’ grades.

With respect to innocent owner claims, the federal government and most states reverse the traditional burden of proof by forcing third-party owners to prove that they are innocent of and had no knowledge of the crime to which their seized property is allegedly linked in order to recover it. As Table A.2 illustrates, only 13 states and the District of Columbia require the government to prove guilt in order to forfeit any type of property, thereby earning an A grade for their innocent owner burdens. Twenty-nine states and the federal government earn F grades for requiring owners to establish their innocence. The other eight states earn C grades for offering limited protections to innocent owners, with the burden generally depending on the type of property.

Table A.2: Innocent Owner Burden Grades

Turning to the financial incentive grade, the federal government and most states direct some or all forfeiture proceeds to law enforcement. As shown in Table A.3, 25 states and the federal government earn F grades for directing up to 100% of forfeiture proceeds to law enforcement. In another seven states, between 90 and 95% of proceeds go to law enforcement, earning D grades. And 12 states earn C grades for directing between 45 and 80% to law enforcement. Only six states and the District of Columbia earn A grades for barring forfeiture proceeds from flowing into law enforcement accounts.

Table A.3: Financial Incentive Grades

After states were assigned their respective grades, the standard of proof and innocent owner burden grades were combined into a single “burden” grade by creating a weighted average, where standard of proof accounted for 66% of the grade and innocent owner burden for 33%. These weights reflect the relative difficulty each process represents for law enforcement agencies in forfeiting seized properties. The burden grades were then combined with financial incentive grades into a single weighted grade by assigning a weight of one to the burden grades and a weight of three to the financial incentive grades, based on the premise that law enforcement agencies are more encouraged to pursue forfeiture by the percentage of forfeiture proceeds directed to law enforcement accounts than by the relative ease of the forfeiture process. This premise has been borne out by a 2018 study of whether more burdensome and less rewarding state forfeiture laws lead to greater equitable sharing activity, as local law enforcement agencies seek to circumvent good state laws by forfeiting property under federal law. ¹ The study tested IJ’s weighting scheme against two other models and found it to be the best predictor of equitable sharing activity.