Few states collect data on forfeiture types, and no state collects reliable data on all types of proceedings—criminal versus civil and judicial versus administrative. But data from five states paint a grim picture of forfeiture proceedings in the states. In the three states that track criminal versus civil, civil forfeiture predominates, just as it does at the federal level. Figure 12 shows Arizona, Connecticut and Oregon overwhelmingly use civil forfeiture instead of criminal.
Figure 12: Properties Forfeited Under Criminal vs. Civil Procedures, Three States
Source: See data notes in State Profiles for source details.
Changes in Connecticut’s reporting do not allow reliable use of its data after mid-2016, but criminal forfeiture cases began to outnumber civil beginning in 2013. This trend did not emerge out of concern for citizens’ due process rights, however. Rather, 2012 staffing cuts in the Connecticut Attorney General’s Office meant the state could no longer litigate civil forfeitures on behalf of local governments. As a result, local courts found it easier to couple most forfeitures with criminal cases rather than prosecute property in separate civil proceedings.1 Thanks to a 2017 reform, Connecticut now requires a conviction in most forfeiture cases.2
Turning to judicial versus administrative forfeiture at the state level, only Minnesota tracks this information statewide. Data from the state indicate that Minnesota prosecutors, like federal ones, typically use administrative forfeiture, initiating cases judicially for only 7% of forfeited properties (see Figure 13). Administrative forfeiture is available in DWI and drug-related cases involving property worth up to $50,000. In such cases, the burden is on the property owner to initiate judicial proceedings by filing a complaint in court within 60 days of receiving notice of the seizure.3 In all other cases, the prosecutor must file a complaint in court to initiate forfeiture proceedings and the property owner has 30 days to answer. If for whatever reason an owner does not act, whether by filing a complaint asking for judicial forfeiture or by responding to the prosecutor’s complaint, the property is forfeited automatically.
Figure 13: Minnesota Forfeited Properties, Judicial vs. Administrative 2010–2018
Note: Data cover how cases were initiated. “Other” includes settlements and agreements outside the forfeiture process. Data are from the Minnesota State Auditor.
Hawaii also makes administrative forfeiture data publicly available, though not data about forfeitures initially filed judicially. So while we cannot determine how many cases are initiated judicially versus administratively, we can take a closer look at the cases initiated and resolved by the state as administrative forfeitures. Between 2001 and 2018, there were 3,903 such cases, averaging 217 annually.4
In Hawaii, prosecutors initiate administrative forfeitures of personal property worth up to $100,000 and vehicles regardless of value (but not real property) by filing a petition with the Hawaii Attorney General and providing owners notice. Owners can then file a petition for remission or mitigation, file a claim seeking judicial review, or do nothing and let the state forfeit the property. Owners must choose either a petition or claim; they cannot file both.5 Owners who opt to submit a petition avoid paying the onerous cash bond required to file a claim for judicial review, as well as the other costs of going to court, but they also give up their right to a hearing before a neutral arbiter.6
If an owner files a claim and it is not rejected as deficient,7 prosecutors must either take the case to court or return the property to the owner.8 As shown in Figure 14, data from the state indicate that just 4% of forfeitures initiated administratively were resolved by courts. In the remaining cases to which owners responded, the final decision to forfeit lay with the AG, with owners filing petitions for remission or mitigation in only 12% of cases. In 84% of cases, owners took no action, and their property was automatically forfeited.
Figure 14: Hawaii Administrative Forfeiture Cases, 2001–2018
Note: Data cover all forfeiture cases initiated administratively by prosecutors. These cases include those that went uncontested, those where owners requested remission or mitigation, and those where owners requested a judicial hearing. The data include only completed cases but do not identify the dispositions of the cases involving a claim for judicial review and petition for remission or mitigation. However, the 84% of uncontested cases ended in automatic forfeiture. Data are from annual reports obtained from the Hawaii Attorney General’s website.