Civil forfeiture is a vast national phenomenon and a fundamental threat to property rights and due process. And while it can be lucrative for law enforcement, there is little evidence to suggest forfeiture effectively meets policy goals of fighting crime or supporting victims and community programs. There is, however, substantial evidence of abuse. Civil forfeiture laws stack the deck against property owners, compromising due process and inevitably sweeping up many innocents. And with transparency lacking, forfeiture activity typically happens outside public view, enabling questionable tactics and spending.
Recent years have seen greater attention and action from lawmakers, but most reforms have been partial measures, leaving civil forfeiture’s core deficiencies largely intact. Instead, state and federal lawmakers should pursue more fundamental change.
First, states and the federal government should end civil forfeiture. Its two-track system that separates a person’s criminal culpability from their loss of property is inherently abusive. If government is going to forfeit a person’s property, it should do so only as part of criminal proceedings with the full panoply of due process protections afforded the accused—in other words, through the one-track process of criminal forfeiture. Lawmakers should be wary of half-measures, such as so-called conviction requirements, that maintain the two-track system and fail to help most property owners caught up in forfeiture proceedings.
Second, states and the federal government should eliminate the perverse financial incentive by directing proceeds to neutral funds, beyond the control of law enforcement. Enabling agencies to self-fund through forfeiture undermines constitutional and democratic controls and accountability mechanisms, including the separation of powers, while incentivizing the pursuit of property at the expense of justice.
Third, state and federal lawmakers should provide robust protections for innocent third-party owners, making it quick and easy for owners to secure the return of wrongfully seized property—and putting the burden on the government to show owners’ personal culpability in order to forfeit.
Fourth, the federal government should abolish equitable sharing, and until it does, states should prohibit their law enforcement agencies from participating in the program. Evidence indicates equitable sharing is not effective as a crime-fighting tool and is prone to abuse—and encourages law enforcement to circumvent state forfeiture law.
Finally, states and the federal government should insist on full transparency and accountability for all forfeiture activity.
New Mexico adopted this reform program in 2015 and, contrary to opponents’ predictions, has seen no increase in crime. New Mexico’s experience demonstrates that strong protections for property rights and due process are achievable without compromising public safety. The only way to protect against unjust seizures and forfeitures and to ensure law enforcement pursues justice, not property, is to end civil forfeiture and the financial incentive that fuels it.