Other Recent Reforms

In addition to the reforms captured by our grades, states have adopted numerous other forfeiture reforms since the second edition of Policing for Profit. By far the most popular have been reforms aimed at improving transparency. As noted above, 25 states have enacted reporting laws or expanded existing reporting requirements. The strongest of these—Arizona, Colorado, Kansas and New Jersey—adopted IJ’s model legislation. ¹ The test of these reforms, however, will be how well agencies fulfill their reporting requirements. (See “Despite Progress, Forfeiture Transparency and Accountability Remain Limited.”)

As for substantive reforms not captured by our grading scheme, eight states limited state and local law enforcement’s use of equitable sharing. ² (See “Equitable Sharing Creates a Giant Loophole” for a discussion of these limits.) Meanwhile, 18 states adopted incremental reforms ranging from prohibitions on forfeitures in limited circumstances to provisions making forfeiture less tempting for law enforcement to various protections for property owners.

Of those, three states banned the use of forfeiture in some cases. Idaho banned vehicle forfeitures related to minor drug possession, and Maryland adopted a similar ban on forfeiture for simple drug possession. ³ North Dakota banned forfeitures of homesteaded real property and some vehicles worth less than $2,000 for controlled substances offenses. ⁴

Five states adopted reforms geared toward making forfeiture less enticing for law enforcement, though they stopped short of directly addressing the financial incentive. This includes Florida’s filing fees and bond requirement, discussed above. ⁵ Arizona, Maryland, Pennsylvania and Wisconsin adopted modest limits on the use of forfeiture proceeds. ⁶

And a number of states adopted protections for property owners caught up in the forfeiture process. Florida sought to strengthen the link between forfeiture and crime by requiring an arrest before most seizures, while other states pursued a similar tack with the adoption in Wyoming of post-seizure probable cause hearings and in Mississippi of a requirement that law enforcement obtain a warrant within 72 hours of seizure. Similarly, Tennessee strengthened procedural safeguards for innocent owners in post-seizure probable cause hearings (called forfeiture warrant hearings in the state). ⁷ Other reforms aimed to improve owners’ access to due process, such as the establishment of pretrial hearings for owners in Wisconsin, the creation of a motion for return of property in Pennsylvania and the abolition of administrative forfeiture in New Hampshire. ⁸ Michigan made it easier for property owners to contest forfeiture by eliminating its requirement that they file a bond when filing a claim, while Illinois eliminated its bond requirement for owners challenging administrative forfeiture. ⁹ And in a move to codify the Eighth Amendment’s ban on excessive fines and forfeitures, Idaho and North Dakota implemented reforms allowing courts to review the proportionality of a forfeiture to the crime giving rise to it. ¹⁰ (To learn more about the Excessive Fines Clause and state forfeiture, see “Curbing ‘Excessive’ Forfeitures.”)

Also in the vein of improving protections for owners, several states—Arizona, Florida, Tennessee, Utah and Wisconsin—established or expanded access to attorney fees, allowing owners to petition for payment of their lawyers’ fees after a successful forfeiture challenge. Arizona also repealed its unique “reverse” attorney fee provision, which forced owners to pay 100% of the government’s attorney fees if the government prevailed on even 1% of its case. ¹¹

Other relevant reforms included new notice requirements, ¹² procedures to allow owners to use property during forfeiture actions ¹³ and to return property to owners who are acquitted, ¹⁴ and a provision permitting joint owners in DWI cases to challenge forfeitures in court. ¹⁵ And Virginia and Wyoming prohibited roadside waivers, which police used to coerce drivers into waiving their right to property seized during a traffic stop. ¹⁶

Wyoming’s roadside waiver reform came after the high-profile case of Phil Parhamovich, a musician pressured during a routine traffic stop on I-80 near Cheyenne to sign over his life savings of $91,800, even though the funds were legitimately earned and Phil was not charged with any crime. IJ intervened and persuaded the court to order Phil’s money returned. Wyoming legislators then banned the practice. ¹⁷

Finally, New Mexico clarified that its best-in-the-nation reforms apply to municipalities while also adding new procedural protections. ¹⁸

At the federal level, Congress in 2019 passed the Clyde-Hirsch-Sowers RESPECT Act as part of the Taxpayer First Act, curbing the Internal Revenue Service’s practice of seizing funds for alleged “structuring” violations—depositing or withdrawing cash in amounts less than $10,000 to evade bank reporting requirements. ¹⁹ Those requirements are intended to catch criminals laundering money or engaging in other illicit activity, but the IRS had for years been seizing entire bank accounts from business owners without any evidence they had done anything wrong—and despite owners’ legitimate reasons for their banking patterns. ²⁰ Indeed, the Treasury Inspector General for Tax Administration found the IRS had pursued such cases because the DOJ “had encouraged task forces to engage in ‘quick hits,’ where property was more quickly seized and more quickly resolved through negotiation, rather than pursuing cases with other criminal activity (such as drug trafficking and money laundering), which are more time-consuming.” ²¹

The Clyde-Hirsch-Sowers RESPECT Act, named for three innocent business owners whose bank accounts had been wrongfully seized by the IRS, limits structuring forfeitures to cases where the funds themselves come from an illegal source or are used to conceal illegal activity. It also allows owners to promptly challenge such seizures. ²²