The third core problem with civil forfeiture is the low standard of proof the government must meet to deprive people of their property. As this report’s grades document, the standard is generally far below the familiar proof beyond a reasonable doubt required in criminal cases to establish people’s guilt and deprive them of their freedom. This makes it easy for the government to win civil forfeiture cases and very difficult for property owners to fight back.
The standard of proof defines how convincing the government’s evidence must be to prevail in court. 1 Proof beyond a reasonable doubt is the highest standard in the American criminal justice system. But the typical standard in most civil cases, including civil forfeiture, is mere preponderance of the evidence. This means that the evidence “more likely than not” weighs in the government’s favor—or, put differently, that there is a 51% chance the government is correct. As Figure 20 shows, this is the most common standard, in force in 20 states and under federal law. Massachusetts sets a lower standard still—probable cause. For at least some types of property, 10 states and D.C. have adopted a somewhat elevated standard, clear and convincing evidence. Since the second edition of Policing for Profit, 13 states have raised the standard of proof. Most notably, Nebraska abolished civil forfeiture and replaced it with criminal forfeiture. Florida retained civil forfeiture but now has a beyond a reasonable doubt standard, while North Dakota raised the bar from rock-bottom probable cause to clear and convincing evidence.
Figure 20: Standards of Proof for Civil Forfeiture
Note: Florida does not have a conviction provision; its standard is beyond a reasonable doubt.
Despite this progress, the typically low standards nationwide tilt the civil forfeiture playing field toward the government and against property owners. They also underscore the wide gap between civil forfeiture and criminal forfeiture. Most obviously, civil forfeiture generally permits punishment—the loss of property—with proof less than beyond a reasonable doubt. Just as important, the proof required has nothing to do with the owner’s culpability. Because civil forfeiture is against the property, not the person, the government need show only that the property is connected to the alleged crime, not that the owner is guilty. Indeed, the government need not prove that anyone is guilty or that a crime even occurred; whether the government ever pursues criminal charges or secures a conviction is irrelevant.
More simply, civil forfeiture is a two-track system. Property is pursued in civil court, while an alleged offender may—or may not—be pursued in criminal court. Criminal forfeiture, by contrast, unifies the two in criminal court, where heightened due process protections apply. With criminal forfeiture, loss of property is part of a criminal sentence following a successful prosecution. That means prosecutors must identify and charge a suspect and a court must determine that (a) a crime occurred, (b) the accused is guilty beyond a reasonable doubt, (c) the property at issue is connected to the crime and (d) no third parties have a legitimate claim to it—all before the property can be forfeited. Compared to civil forfeiture, criminal forfeiture significantly reduces the risk that a person’s property will be forfeited unjustly.
The one-track system of criminal forfeiture makes taking property significantly harder for the government, which is precisely why civil forfeiture’s defenders favor its separate tracks. Among civil forfeiture’s advantages, according to a former federal prosecutor, is the ability to take property when the offender is unknown, when someone else owns the property and when a crime is too minor to warrant a conviction—in other words, when obtaining a criminal conviction is too hard or, in a prosecutor’s view, undesirable. 2
Criminal forfeiture makes such takings more difficult, though not impossible. 3 That is why Policing for Profit gives highest marks for standard of proof to states that have effectively banned civil forfeiture and instead use only criminal forfeiture. To date, only three states have done so—New Mexico, Nebraska and North Carolina.
As Figure 20 indicates, 15 states have some form of conviction provision. Since the second edition of Policing for Profit, 10 states have adopted such provisions, but as discussed below, these reforms are, at best, modest improvements over civil forfeiture alone—if they do anything at all. Moreover, they vary in important ways. With a better understanding of how these provisions work, this edition of Policing for Profit takes a more skeptical view of their utility; it also takes state-by-state variations into account. 4 Thus, the strongest conviction provisions—in Missouri and Montana—earn higher marks for standard of proof, while the weakest earn middling grades. 5
Overall, despite reforms, in most of the country the government’s bar to forfeit property remains troublingly low—and a far cry from the tougher standard of criminal forfeiture.