Forfeiture Doesn’t Fight Crime

Perhaps the most common argument in favor of forfeiture is that it removes the profits and instrumentalities of crime and thus fights crime by weakening criminal organizations, punishing criminals and deterring crime while also giving law enforcement greater resources with which to fight crime. ¹ The federal government highlights the major drug operations it busts and the high-profile money laundering schemes it foils thanks to forfeiture. ² But multimillion-dollar, let alone billion-dollar, forfeitures from drug kingpins and financial fraudsters are far from the norm. ³

As discussed in “Big-Time Criminals or Small-Time Forfeitures?,” available data on the size of individual forfeitures suggest the vast majority are of relatively low value. At the federal level, recent data indicate half of DOJ’s currency forfeitures are worth less than $12,090. And for Treasury, that number is even lower—half of its currency forfeitures are worth less than $7,320. ⁴ That is not kingpin money—instead, it could be cash intended to purchase a used car, ⁵ legal gambling winnings ⁶ or legitimate profits from cash-only businesses. ⁷ And the median value of currency forfeited under state law is even lower. Thirteen of the 21 states for which we have data had a median value of less than $1,000, with a few states coming in at just a few hundred dollars. Seizing and forfeiting the few hundred dollars a person happens to have in their wallet during an encounter with law enforcement seems unlikely to bring down drug traffickers or large criminal organizations.

Moreover, most forfeiture reporting systems fail to track whether forfeiture efforts are tied to convictions or advance criminal investigations. For example, the federal government maintains detailed databases that track seized property, recording information such as when property was seized, its value and its final disposition. Between them, these databases track every asset seized by agencies within DOJ, Treasury and DHS and contain thousands of unique variables. Not a single variable tracks whether anyone was charged with a crime or whether a conviction was obtained in conjunction with a forfeiture. ⁸ This makes it difficult, if not impossible, to evaluate whether federal forfeiture programs are working as intended to target crime.

In a similar vein, in 2020, DHS’s OIG publicly criticized DHS for having no performance metrics to gauge forfeiture program effectiveness. The OIG recommended creating an office to implement such metrics and oversee forfeitures, but DHS balked—even though one DHS agency, CBP, routinely violates forfeiture policies and may be taking property from innocent people. ⁹

On the state side, only a handful of states attempt to track convictions, and, with one exception, the data they collect are spotty at best and cannot be reliably analyzed. This may be because reporting responsibilities often lie with seizing agencies, which may not always know what ultimately becomes of property.

Only Pennsylvania reliably tracks whether a person was convicted of a crime in conjunction with a forfeiture, though data do not indicate whether the forfeiture was civil or criminal nor whether the person convicted owned the property. Convictions accompanied approximately 70% of forfeitures in 2018 (see Figure 24). While the reason for this high conviction rate is difficult to determine, it is possible recent public attention on forfeiture has prompted prosecutors to exercise more caution when it comes to civil forfeitures. That is certainly the case in Philadelphia, where a recent class action lawsuit brought by IJ resulted in the city dramatically reforming its civil forfeiture program. ¹⁰

But despite Philadelphia’s progress, other counties in Pennsylvania have recently stepped up their forfeiture activity. ¹¹ For example, in 2019, Berks County District Attorney John T. Adams went so far as to say, “We’re looking for assets more so than we ever did before. . . .  This is bad guys’ money that we’re taking to enable us to arrest more bad guys. You’re damn right we’re gonna take it.” ¹² Indeed, in Pennsylvania, county conviction rates range from 100% in some counties with few forfeitures to just 23% in Lackawanna County. Pennsylvania law is permissive, leaving the choice up to prosecutors, so this variation may be due to different policies and practices put in place by different district attorneys.

Figure 24: Pennsylvania Forfeited Property Conviction Rates, 2018

Source: Pennsylvania Attorney General’s FY17–18 forfeiture report.

Pennsylvania’s overall conviction rate notwithstanding, a growing body of literature finds little evidence forfeiture fights crime. This includes economist Brian Kelly’s 2019 equitable sharing study as well as a 2017 study by DOJ’s own Office of the Inspector General. ¹³ The OIG study analyzed a sample of 100 DEA cash seizures and found no evidence the seizures advanced a criminal investigation.

At the state level, research analyzing New Mexico’s 2015 reform found nothing to corroborate proponents’ claims that ending civil forfeiture would reduce interagency cooperation, place a strain on law enforcement resources or lead to a surge in crime. ¹⁴ In fact, eliminating civil forfeiture, and replacing it with criminal forfeiture, had no effect on crime in the state. (See “New Research: Eliminating Civil Forfeiture Does Not Increase Crime.”)