Policing for Profit
Most states and the federal government have laws allowing police and prosecutors to seize and permanently keep Americans’ cash, cars, homes and other property suspected of being involved in a crime—without regard to the owners’ guilt or innocence. This is civil forfeiture, and it is rampant nationwide, with local, state and federal agencies using it to collectively forfeit billions of dollars each year. Many of these billions go directly to law enforcement, including the same police and prosecutors who seize and forfeit property.
This third edition of Policing for Profit presents the largest collection of state and federal forfeiture data yet assembled and provides updated grades of state and federal civil forfeiture laws. Key findings include:
Forfeiture Is Big and It Happens Nationwide
Many jurisdictions fail to provide a full accounting of forfeiture activity, so any estimate of forfeiture’s scope will undercount. Still, by any measure, forfeiture activity is extensive nationwide, sending billions of dollars to government coffers.
- In 2018 alone, 42 states, the District of Columbia, and the U.S. departments of Justice and the Treasury forfeited over $3 billion. This is the year for which we have data from the largest number of states.
- Looking at a longer time period, 2002 to 2018, 20 states and the federal government forfeited over $63 billion. The remaining states did not provide data for those 17 years.
- Since 2000, states and the federal government forfeited a combined total of at least $68.8 billion. And because not all states provided full data, this figure drastically underestimates forfeiture’s true scope.
- Among the states with 2018 data, Florida, Texas, Illinois, California and New York took in the most forfeiture revenue. But once state populations are factored in, Florida, Illinois, Tennessee, Rhode Island and Nebraska used forfeiture most extensively.
State and Federal Laws Make Forfeiture Easy and Profitable for Law Enforcement
This report grades state and federal laws on three core elements: (1) the standard of proof the government must meet to forfeit property, (2) protections provided to innocent owners whose property is seized, and (3) the share of forfeiture proceeds that flows to law enforcement coffers, providing a financial incentive to seize and forfeit. These elements reflect both how easy forfeiture is for the government—and conversely, how hard it is for property owners to fight—and how profitable forfeiture is for law enforcement.
- Thirty-five states earn overall grades of D+ or worse for extending property owners meager protections and giving law enforcement large financial stakes in forfeiture proceeds. And federal civil forfeiture laws are among the nation’s worst, earning a D-.
- New Mexico earns the nation’s only A for abolishing civil forfeiture and eliminating any financial incentive by directing forfeiture proceeds to the state’s general fund.
- Since the previous edition of Policing for Profit, 32 states and the federal government have adopted some form of forfeiture reform. Unfortunately, few of these reforms have tackled the central problems with civil forfeiture laws graded by this report.
New Research Shows Eliminating Civil Forfeiture Does Not Increase Crime
This edition of Policing for Profit presents new research indicating that states can adopt stronger forfeiture reforms without compromising public safety. The study examines New Mexico’s best-in-the-nation forfeiture laws, adopted in 2015. To see whether abolishing civil forfeiture negatively impacted public safety, the study compares New Mexico’s crime rates to those of neighboring Colorado and Texas before and after reform.
- Contrary to claims that abolishing civil forfeiture would increase crime rates, multiple analyses across five different measures of crime find no evidence of any negative effect from New Mexico’s reform.
- The state’s overall crime rate did not rise following the reform, nor did arrest rates drop, strongly suggesting civil forfeiture is not an essential crime-fighting tool and law enforcement agencies can fulfill their mission without it.
Federal Equitable Sharing Creates a Giant Loophole
Even in states with better civil forfeiture laws, innocent people can still lose property to forfeiture. That is because the federal government offers a giant loophole: federal equitable sharing. Equitable sharing allows state and local law enforcement agencies to partner with federal agencies to seize and forfeit property under the federal government’s permissive laws and receive up to 80% of the proceeds, regardless of state law. By handing over seized property to the federal government, state and local law enforcement agencies can harness the litigation power of the federal government—and circumvent state laws that provide better protection to property owners or direct forfeiture proceeds to a neutral account.
- Each year, the federal government pays out hundreds of millions of dollars to state and local agencies participating in the equitable sharing program—$333.8 million in 2019 alone and more than $8.8 billion in total from 2000 to 2019.
- In a nationwide ranking that factors in drug arrest rates, Rhode Island, New York, California, Massachusetts and Texas participate most heavily in equitable sharing.
- Several states, including New Mexico, have shrunk the equitable sharing loophole in various ways. But in most states, it remains wide open.
Easier Forfeiture Procedures Predominate
With civil forfeiture, property is on trial—not a person—meaning the government need only demonstrate property’s link to a crime, not its owner’s personal culpability in that crime. This is in contrast to criminal forfeiture, which requires prosecutors to prove both the owner’s guilt beyond a reasonable doubt—a far more difficult proposition—and the property’s connection to the crime. And at the federal level and in more than a dozen states, there is a third option: administrative forfeiture. A form of civil forfeiture, administrative forfeiture allows an agency to forfeit property almost automatically without meaningful judicial involvement.
- Civil forfeiture greatly outpaces criminal at the federal level and in the three states that track this information.
- At the federal level, the vast majority of forfeitures are processed administratively. And in Minnesota, the only state that reliably tracks this information, prosecutors initiate over three-quarters of cases administratively.
Forfeiture Isn’t Targeting Kingpins and Ordinary People Can’t Fight Back
Proponents argue forfeiture fights crime by hitting criminals where it hurts—in their wallets. Our data cast doubt on this claim, suggesting forfeiture instead often targets ordinary people. The data also show people rarely fight back.
- The median currency forfeiture is small, averaging just $1,276 across 21 states with available data. In some states, the median forfeiture is only a few hundred dollars. These low values suggest forfeiture often is not targeting kingpins or major financial fraudsters.
- More than that, it may not make economic sense for people to contest such low-dollar forfeitures. Conservatively, hiring an attorney to fight a relatively simple state forfeiture case costs at least $3,000—more than double the national median currency forfeiture.
- This may help explain why available data suggest forfeitures are frequently uncontested, resulting in nearly automatic wins for the government. In the four states that track this information, people seek return of their property in 22% of cases or fewer.
Evidence Suggests Forfeiture Doesn’t Work
Our data also call into question claims that forfeiture fights crime and the proceeds can be used to compensate victims or invest in anti-drug and other community programs.
- Few, if any, forfeiture programs track whether forfeiture cases are linked to, let alone advancing, criminal investigations. As multiple federal inspectors general reports have noted, this makes it impossible for officials to evaluate program effectiveness and calls into question whether forfeiture efforts are advancing legitimate goals.
- A growing body of research, including the new evidence from New Mexico presented here, finds little evidence forfeiture reduces crime.
- Although federal agencies highlight the billions they have recovered and returned to victims of Bernie Madoff’s Ponzi scheme through forfeiture, such examples are outliers. Overall, DOJ spends less than a third of forfeiture proceeds on victim restitution or other third-party compensation.
- While some states mandate spending on victim compensation or community programs, data from 13 states suggest agencies otherwise rarely use forfeiture proceeds for these purposes. In 2018, agencies in the 13 states spent almost no proceeds on victims and just 9% on community programs on average.
This report’s findings add to a growing body of research casting doubt on forfeiture’s utility as a law enforcement tool. They also illustrate the pressing need for forfeiture reform. To protect Americans from losing property unjustly, states and the federal government should follow New Mexico’s example and end the inherently abusive practice of civil forfeiture, where owners’ personal criminal culpability is generally irrelevant to the proceedings.
States and the federal government should also direct all forfeiture proceeds—including those from criminal forfeitures—to neutral funds, beyond law enforcement control, thereby ending agencies’ self-funding and eliminating their incentive to police for profit.
And to prevent agencies from circumventing their state’s forfeiture laws, the federal government should abolish equitable sharing. Until it does, states should prohibit agencies from participating in the program.
As this report’s findings and New Mexico’s experience show, states and the federal government can do all this without sacrificing public safety. It is past time other states and the federal government followed New Mexico’s lead on forfeiture—there is nothing to lose and much to gain.