Federal Forfeitures by Type
Federal data confirm most forfeitures at the federal level are civil. According to data from DOJ, only 16% of its forfeitures were processed criminally between 2000 and 2019. Civil forfeitures with at least some judicial involvement made up another 6% of DOJ forfeitures, meaning more than three-quarters of all DOJ forfeitures were processed administratively (see Figure 7). Put differently, of the 84% of DOJ forfeitures that were civil, 93% were processed administratively. 1
Figure 7: DOJ Forfeitures, Criminal vs. Civil-Judicial vs. Administrative, 2000–2019
Source: Authors’ calculations based on DOJ’s Consolidated Asset Tracking System, updated April 3, 2020, https://www.justice.gov/afp/freedom-information-act
Treasury’s forfeiture program uses civil and administrative procedures even more heavily (see Figure 8). Between 2000 and 2016, the most recent year for which we have data, just 2% of Treasury forfeiture cases were processed criminally. Another 2% were civil-judicial forfeitures. A full 96% were processed administratively. This is after excluding cases involving counterfeit and other prohibited goods (as well as all summary contraband forfeitures), which are less likely to be contested and thus more likely to end in forfeiture by default. This is noteworthy because many forfeitures captured in Treasury data occur in the customs context and therefore involve these types of goods. Excluding them ensures we are not overestimating the percentage of administrative forfeitures. In its own analysis, DHS’s OIG found 98.6% of forfeitures conducted by CBP and other DHS agencies were processed administratively. 2
Figure 8: Treasury Forfeitures, Criminal vs. Civil-Judicial vs. Administrative, 2000–2016
Source: Authors’ calculations based on Treasury’s Seized Assets and Case Tracking System. IJ obtained these data in 2019 through litigation under the Freedom of Information Act and has put them online for public access: https://ij.org/wp-content/uploads/2020/07/Data-for-Web.zip
While the pattern of Treasury’s forfeiture proceedings has largely remained constant over time, the pattern of DOJ’s has not. As a share of DOJ forfeitures, administrative forfeiture has been declining over time, while criminal forfeiture has been on the rise (see Figure 9).
Figure 9: All DOJ Forfeitures by Proceeding Type, 2000–2019
Source: Authors’ calculations based on DOJ’s Consolidated Asset Tracking System, updated April 3, 2020, https://www.justice.gov/afp/freedom-information-act
One possible explanation for this trend is that DOJ’s policing priorities related to forfeiture may have shifted over time. Forfeiture data suggest DOJ’s attention may be moving away from drug crimes, which have historically accounted for a considerable portion of civil and administrative forfeitures, and toward firearms offenses and white-collar crimes like money laundering, Ponzi schemes and other financial fraud. Such crimes may be more likely to involve criminal prosecutions and convictions. As Figure 10 illustrates, DOJ criminal forfeitures for drug crimes have remained relatively steady over the past two decades, though they have decreased somewhat in recent years. Meanwhile, criminal forfeitures for firearms and especially white-collar crimes have ballooned, though they have begun to decline in recent years.
Figure 10: Number of DOJ Criminal Forfeitures by Offense Type, 2000–2019
Source: Authors’ calculations based on DOJ’s Consolidated Asset Tracking System, updated April 3, 2020, https://www.justice.gov/afp/freedom-information-act
White-collar and firearms crimes have also accounted for larger shares of all DOJ forfeitures than drug crimes over the past decade (see Figure 11). The increase in white-collar forfeitures may owe, at least in part, to the fight against terrorism and specifically the fight to cut off terrorist financing. This focus has likely led to greater scrutiny of potential money laundering and other financial crimes—activities that are commonly used to fund terrorist organizations. 3
Another possible explanation is that technological innovations have made white-collar crimes easier to perpetrate and consequently increasingly common to prosecute. 4
The increase in firearms forfeitures likely reflects, at least in part, the Obama administration’s focus on gun violence. 5
These trends add weight to the theory that federal policing priorities may have some effect on forfeiture proceedings. 6
Despite declines on the DOJ side, administrative forfeitures still account for most federal forfeitures. Administrative forfeiture is likely so common because it is, in the federal context, the default procedure when no one triggers judicial involvement by filing a claim for seized property.
Figure 11: Most Common Offenses Leading to DOJ Forfeitures, All DOJ Forfeitures, 2000–2019
Source: Authors’ calculations based on DOJ’s Consolidated Asset Tracking System, updated April 3, 2020, https://www.justice.gov/afp/freedom-information-act.