The Problem with “Conviction Requirements”

In recent years, a growing number of states have tried to fix the problem of unjust civil forfeitures by adopting so-called conviction requirements. Unfortunately, though they purport to solve a key problem with civil forfeiture by abolishing forfeitures without convictions, these provisions rarely live up to their billing. Forfeitures without convictions continue. These laws are better described as “conviction provisions” that require a conviction in only limited cases. They represent at best a modest, misnamed reform—and, at worst, a diversion from the deeper change needed.

Conviction provisions’ failure as an effective reform stems from their maintenance of a two-track system that tries property in civil court and people in criminal court. This has at least two important implications that undermine the provisions’ utility, aside from the lack of a right to counsel and other due process protections available in criminal proceedings.

First, the conviction prerequisite usually applies only if owners make the first move by contesting the forfeiture. Unlike criminal forfeiture, where the government must initiate the process by filing criminal charges, most conviction provisions do not fix the basic problem that civil forfeiture forces owners to go to civil court to win back seized property. If, for any reason, they fail to do so, the government can forfeit the property without a conviction.

And, as this report details, there are many reasons owners may not make it to court: inability to afford counsel, property that is worth less than the cost of hiring an attorney, the difficulty of navigating a complex process with tight deadlines and a process generally stacked against owners. Minnesota, an early adopter of a conviction provision in 2014, ¹ illustrates the problem.

The median value of currency forfeited in Minnesota is typically quite low—just $718 in 2018—and well below the cost of hiring an attorney. And, as noted above, state data indicate forfeiture claims are infrequently filed, in only 22% of drug and DWI cases. This suggests at least 78% of Minnesota’s forfeitures do not require a conviction, and that figure may be higher given that claims may be abandoned or lead to settlement. ²

This may be why Minnesota’s conviction provision appears to have had little effect. Since 2014, total forfeiture revenue has remained steady at roughly $9.4 million annually. Minnesota does not track how many forfeitures are accompanied by a conviction, but a true conviction “requirement” that significantly raised the government’s bar to forfeit would be expected to reduce forfeiture activity more noticeably. ³

Second, most conviction provisions apply to any person, not necessarily the property’s owner. This means the government can convict someone else in criminal court and still forfeit an owner’s property in civil court. ⁴  Third-party owners can raise an innocent owner defense, but this is no different than ordinary civil forfeiture and thus hardly constitutes an improvement over civil forfeiture without a conviction provision.

Adding to these weaknesses, several states’ conviction provisions apply only to certain types of property. Michigan’s and Minnesota’s provisions apply to property worth less than $50,000. ⁵ California’s is limited to vehicles, real property and cash worth less than $40,000. ⁶ New Jersey sets a lower threshold of just $1,000 for cash and $10,000 for other types of property, while in Iowa the conviction provision applies only to property worth less than $5,000. ⁷

In short, the label “conviction requirement” gives the false impression that, absent a conviction, seized property must be returned to its owner. But that is often not the case. These provisions may raise the government’s bar to forfeit in some instances, but more often they make little difference. They are a pale imitation of the one-track process of criminal forfeiture for determining criminal culpability and loss of property. More worrying, a false impression of conviction provisions’ effectiveness may dissipate energy for the more urgent and effective reform of abolishing civil forfeiture.