Beyond giving law enforcement an improper financial incentive, forfeiture laws create another fundamental problem: They permit the government to forfeit property from people who are innocent of any wrongdoing but whose property is seized because someone else might have used it in an alleged crime. Worse, as this report’s grades document, under most civil forfeiture laws, such owners bear the burden of proving their own innocence to secure their property’s return, violating the basic rule that citizens are innocent until proven guilty.
This problem of third-party innocent owners is far from uncommon. Perhaps the most notorious U.S. Supreme Court case on forfeiture, 1996’s Bennis v. Michigan, involved a wife whose family car was forfeited by Wayne County, Michigan, after her husband went behind her back to use the car while soliciting a prostitute. 1 The county’s forfeiture program continues to this day—and it is the same one that has swept up Stephanie Wilson and countless other innocent residents of Detroit and Wayne County in the meantime. 2 In 2017 alone, the county forfeited almost 400 cars without charging anyone with a crime. 3
Albuquerque’s now-defunct forfeiture program produced similar results. According to that city’s chief hearing officer, about half the cars seized belonged to someone other than the alleged offender, usually a parent, spouse, girlfriend or other loved one. 4
Indeed, the innocent owner problem is baked into any forfeiture program. Because seizure requires only probable cause of the property’s connection to an alleged crime—and requires no proof of the owner’s involvement—innocent owners’ property will inevitably be seized. On paper, civil forfeiture laws generally provide a way for such owners to get their property back, often known as an “innocent owner defense.” 5 But these provisions are hardly watertight protections against unjust forfeiture. First, they often require owners to file legal papers shortly after the seizure—just 17 days in Wayne County 6 and 10 days in Albuquerque. 7 (Albuquerque also required a $50 administrative fee.) If owners fail to file properly or on time, the property is usually forfeited automatically. If they do file properly and on time, owners can wait months for a hearing—and may, while they wait, face pressure from prosecutors to settle, perhaps by giving up part of the property or paying a fee to get it back 8 (see “Forfeiture Creates Pressure to Wheel and Deal or Walk Away”).
Finally, if owners make it to court, they will confront the challenge graded by this report: To win their innocent owner claim, they will usually bear the bizarre burden of proving a negative—proving they neither knew about nor consented to the use of their property in the alleged crime. 9 This was how Albuquerque’s forfeiture program operated, and it is another reason the federal court struck it down. The city’s forfeiture ordinance, the court wrote, “violates due process by depriving car owners of their property unless they prove their innocence.” 10 The process created such a high risk that people would lose their property unjustly that the court declared it unconstitutional. In reaching this conclusion, the court followed a recent U.S. Supreme Court ruling in a similar context affirming that people seeking the return of seized property are “entitled to be presumed innocent.” 11
Nonetheless, as Figure 19 shows, in 29 states and under federal law, owners bear the burden of proving their own innocence to win seized property back. Just 13 states and D.C. place the burden of proof on the government. In the remaining eight states, the burden depends on the type of property at issue.
Figure 19: Innocent Owner Burdens in Civil Forfeiture Laws
Since the second edition of Policing for Profit, the situation for innocent owners has improved slightly. Three states—Iowa, Pennsylvania and Wisconsin—shifted the burden of proof from innocent owners to the government in all cases. Another two—Maryland and Ohio—did the same for some types of property. But overall, protections for innocent owners remain weak nationwide.