Easiest Forfeiture Procedures Predominate
Both civil and criminal forfeiture generally offer the same financial incentives to seize property—that is to say, the share of proceeds that law enforcement can keep is generally the same. But civil forfeiture is considerably easier for the government. There is typically no need to convict or even charge anyone, owners have limited due process rights, and standards of proof are generally low (see “Civil Forfeiture Laws Fail to Protect Property Owners”).
At the federal level and in more than a dozen states and D.C., there is an easier process still—administrative forfeiture. 1 With administrative forfeiture, the government need not take even the modest first step of filing a forfeiture complaint laying out its case in court. Instead, the seizing agency or prosecutor need only send notice to owners informing them of (1) the government’s intent to forfeit their property administratively and (2) the statutory time window (which can be as short as 20 days 2 ) during which they can ask the court to get involved. If no one files a claim, the property is automatically forfeited. 3
However, even if an owner makes a claim, they still may not get their day in court. Federal law and some state laws give government attorneys the power to decide whether the claim can proceed to court. This can trip up innocent property owners like Terry and Ria Platt (see “Prosecutors Use Dirty Tricks to Make Sure Forfeiture Sticks”).
And in fact, at the federal level, DOJ data indicate that between 1997 and 2015, one-fifth of all claims filed for seized property—and more than one-third of claims filed for seized cash—were deemed deficient by the seizing agency. The data suggest federal agencies reject claims largely for technical reasons, most commonly (68%) because they were not “executed and sworn to by the claimant.” This simply means the claimant failed to include a paragraph swearing under penalty of perjury that the statements in the claim were true. Deficiencies like these can prevent owners from ever making it to court, even if they are innocent and intend to fight the forfeiture.
Worse, some federal agencies just sweep owners’ claims under the rug. By policy, U.S. Department of Homeland Security agencies, which participate in Treasury’s forfeiture program, must forward claims to a U.S. Attorney’s Office. The USAO is then supposed to decide whether to pursue judicial forfeiture or return seized property. Instead, according to a 2020 DHS Office of Inspector General report, U.S. Customs and Border Protection routinely refrained from sending claims to a USAO while it pressured property owners into settling. CBP did this in seven of the 11 cases with claims that the OIG sampled. The OIG concluded: “By negotiating settlements in cases where a USAO declines the case referral or in cases that were not referred to a USAO, CBP may be taking a portion of property from innocent property owners.” 4
Although the government often decides whether to pursue forfeiture administratively or take a forfeiture case to court, owners have some say in which process is used in some jurisdictions. For example, in Iowa, Kansas and Louisiana, owners can file a petition with government attorneys asking them to review their cases and declare their property exempt from forfeiture because they are innocent owners. 5 Similarly, in Arizona, Hawaii and Rhode Island and at the federal level, owners can file a petition for remission or mitigation with government attorneys or prosecutors, asking the government (not a court) to release their property because they are innocent owners or due to extenuating circumstances. 6
Many innocent owners choose this option because they believe that if they have the chance to speak their piece they can get their property back fast. Others may not fully grasp the difference between administrative and judicial procedures. Some owners may suspect they would lose in court but, facing a difficult financial situation, hope the government agrees that forfeiting their property would impose an undue hardship. Others choose administrative forfeiture for financial reasons, because they cannot afford to hire an attorney to represent them in court or to pay the cash bond required in some jurisdictions. These bonds can run into the thousands of dollars. 7 And still others may fear having to pay the government’s attorney fees if they lose at trial. 8 Regardless of the reason, by opting for administrative procedures, owners may foreclose any possibility of arguing their cases before an impartial judge. 9