Barriers to Forfeiture Reform
Policing for Profit’s grades and empirical findings illustrate the need for further forfeiture reform. Indeed, beyond transparency and mostly modest procedural reforms, meaningful change remains elusive—despite demand from the public and political leaders. Public opinion surveys consistently show sizable majorities oppose current forfeiture practices and support reform. In 2016, both major parties’ platforms endorsed forfeiture reform. And the sheer volume of reform activity in state legislatures over the past five years indicates interest among lawmakers is both widespread and bipartisan. Yet, repeatedly, substantive reform efforts have been stalled or derailed—usually by law enforcement opposition—despite well-documented abuses.
The past five years have seen several ambitious reform efforts founder. Since 2014, federal lawmakers have repeatedly introduced the Fifth Amendment Integrity Restoration or FAIR Act, most recently in June 2020. The bill would eliminate equitable sharing, raise the federal standard of proof, offer owners new procedural protections and direct forfeiture proceeds to a fund controlled by Congress. Prior versions never made it out of committee. Nor did the more modest Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures or DUE PROCESS Act. In 2019, amid a larger appropriations debate, the House of Representatives unanimously approved an amendment to defund part of the equitable sharing program. Unfortunately, the Senate refused to accept that amendment, leaving the program untouched. Much the same thing happened in 2017.
As in Congress, stronger state-level reforms have stalled. South Carolina and Minnesota failed to pass bills that would have adopted New Mexico-style reforms to abolish civil forfeiture and end the financial incentive. (The South Carolina Supreme Court may take this decision out of lawmakers’ hands. See “South Carolina High Court Weighs Forfeiture and the Constitution.”) Lawmakers in Missouri have repeatedly tried—without success—to close the equitable sharing loophole. Bills in Arizona, Hawaii, Oklahoma and Rhode Island have proposed new conviction provisions, among other reforms, including eliminating the financial incentive in Hawaii and Rhode Island. None made it across the finish line. In 2017, Texas lawmakers filed no fewer than 15 forfeiture reform bills, but not one made it to a floor vote.
A common refrain among reform opponents is that the system is not broken, and any incidents of abuse are isolated. Yet extensive reporting has revealed wide-ranging problems, often concerning the very forfeiture programs reform efforts have failed to touch. In 2014, The Washington Post’s “Stop and Seize” series identified thousands of warrantless highway seizures through the federal equitable sharing program. The Greenville News’ “TAKEN” series painstakingly researched three years’ worth of forfeiture cases from across South Carolina, finding hundreds of forfeitures with no conviction or arrest—with most of the proceeds going to law enforcement. As part of the Pulitzer Center’s own “TAKEN” series, St. Louis Public Radio produced an in-depth series detailing how Missouri police use equitable sharing to seize cash, circumvent state law and keep the proceeds. Also as part of the Pulitzer series, The Texas Tribune published exposés about Texas’ forfeiture practices. A 2018 report by Hawaii’s legislative auditor revealed financial mismanagement and other problems in the state’s forfeiture program. A news investigation likewise revealed problems in Rhode Island.
Despite such reporting, reform typically falls victim to well-organized law enforcement opposition, whether overt or behind the scenes. Efforts in Texas faced “strident opposition from law enforcement and local prosecutors,” while a “quiet lobbying campaign by law enforcement” stymied reform in Missouri. Opponents in Oklahoma criticized reform as “an affront to law enforcement.”In Minnesota, a lawmaker who is also a county prosecutor converted a bill abolishing civil forfeiture into a study committee. In a move hailed by law enforcement, the committee recommended weak reforms that failed to address the inherent problems with civil forfeiture. Hawaii’s bill passed both houses unanimously but was vetoed by the governor in a move urged by local prosecutors.
Occasionally, reform opponents admit that funding concerns drive their resistance. As the executive director of the South Carolina Sheriff’s Association told The Greenville News, if agencies cannot keep forfeiture proceeds, “[W]hat is the incentive to go out and make a special effort?” His question echoes the concerns of the Wisconsin law enforcement officials who fended off a proposal to end their practice of keeping a cut of proceeds to cover costs. Similarly, a deputy sheriff cautioned Minnesota lawmakers that law enforcement needs forfeiture funds for critical purchases. More recently, an Arizona lawmaker defended her vote against a 2020 reform package—despite being aware of abuses—as a way to avoid disrupting needed revenue during the COVID-19 pandemic.
Reformers insist, however, that they are not against law enforcement or adequately funding agencies. Instead, they favor due process and fear reliance on forfeiture funds can erode public confidence in police. As a sponsor of recent reform bills in Minnesota put it, “We have to properly fund local law enforcement. But it’s the Legislature that should be doing the appropriation.”