Owners Rarely Fight Back

Many forfeitures are processed administratively or end in default judgments because no one fights back. According to available data, relatively few property owners contest forfeiture. Figure 15 shows average claim rates in the four states that track whether anyone filed a claim for return of seized property. Not all these states track this information consistently, and they all track it slightly differently. 1 Nevertheless, the overall takeaway is that owners rarely fight back.

Figure 15: Average Annual Claim Rates, Four States

Note: Minnesota data are from the Minnesota State Auditor’s annual forfeiture reports. For details of the other states’ sources, see data notes in State Profiles.

Arizona, Minnesota and Oregon, in most cases, require property owners or other interested parties to proactively file a claim for return of property. In Minnesota, the state with the highest claim rate, owners seek the return of their property only 22% of the time. However, the state’s data cover only forfeitures related to drug and DWI offenses and exclude properties where it was unknown whether anyone filed a claim.

In Arizona, owners challenge forfeiture in only 19% of cases, using either judicial or administrative processes. This includes both claims seeking judicial review and claims in “uncontested forfeiture” cases, where prosecutors, not an impartial judge, decide whether forfeiture is justified. 2 (See “Prosecutors Use Dirty Tricks to Make Sure Forfeiture Sticks.”) The claim rate in Oregon is approximately 18%, though the state tracks only some questions related to claims, and we could not infer claim rates for nearly half the properties.

In Colorado, property owners must respond to the state’s forfeiture complaint filed in court by filing their own counterclaim. Only 1% of forfeitures are contested in the state.

Somewhat different data from Tennessee also indicate owners rarely fight forfeiture. Tennessee is unique in that it processes forfeitures via an administrative hearing procedure, where an administrative law judge—that is, a judge who is a member of the executive branch, not an independent member of the judiciary—decides whether the state can forfeit the property. Three-quarters of Tennessee’s currency forfeitures were not contested, meaning the owner did not request an administrative hearing and instead walked away (see Figure 16). Just 14% of owners contested forfeiture of their currency, requesting an administrative hearing. If contesting owners receive an adverse administrative ruling, Tennessee allows them to request judicial review by a court. However, our hearing data do not detail how many owners availed themselves of this appeal option.

Figure 16: Tennessee Currency Forfeitures, 2017–2018

Source: Tennessee Department of Safety and Homeland Security.

Proponents argue property owners rarely fight forfeiture because “[m]ost cases are indisputable.” 3 While that reasoning may explain some uncontested forfeitures, it is likely that the difficulty and expense of fighting forfeiture, paired with the low value of most forfeitures, deter many owners from fighting for return of their property. Without the right to legal counsel, to say nothing of other protections available in criminal proceedings, property owners must hire their own attorney or attempt to navigate the confusing civil forfeiture process, with its many procedural traps, on their own. When valuable property is at stake, an owner may decide fighting back is worth the headache. But when property is worth $2,000 or less, as it most often is, owners may—quite understandably—decide fighting back is more trouble than it is worth. Failure to make a claim may be evidence less of guilt than of a rational choice to walk away.