Big-Time Criminals or Small-Time Forfeitures?

While forfeiture proponents tout the importance of forfeiture for going after the El Chapos and Bernie Madoffs of the world,1 the reality is that the typical forfeiture is hardly the stuff of drug kingpins or major fraudsters. In the 21 states with available data,2 most currency forfeited in recent years was under $2,000 (see Figure 6), an average of $1,276 across all states. In most of the 21 states, the median forfeiture is even smaller—often much smaller. For example, half of Michigan’s currency forfeitures were less than $423; half of Pennsylvania’s were less than $369.

Figure 6: Median Currency Values, 21 States, 2015–2019

Note: Data cover a mix of calendar and fiscal years. Not all states had data for all five years. See data notes in State Profiles for applicable years and sources.

At $4,500, Florida’s median currency forfeiture is nearly $2,000 higher than the next closest state’s. A 2016 reform may help explain this finding.3 The reform requires law enforcement to pay a $1,000 filing fee and post a $1,500 bond when filing for forfeiture. (If the agency wins, the bond is returned; if it loses, the bond is paid to the property owner.) These unique upfront costs make forfeitures under $1,000 unprofitable for law enforcement while also reducing the return on forfeitures over $1,000 and making forfeitures under $2,500 riskier. This likely encourages a focus on higher-value property. Florida’s higher median illustrates how financial incentives may influence law enforcement actions—when certain types of forfeitures are less profitable, agencies will likely conduct fewer of those forfeitures.4 At the same time, it should be noted that $4,500, though higher than other states’ medians, is still a low enough figure that it likely is not worth the hassle and cost of hiring an attorney to fight forfeiture, especially given the risk of losing.

The low median value of most forfeitures is in line with media reports about forfeiture activity. For example, from 2012 to 2017, Cook County, Illinois, law enforcement conducted over 23,000 seizures totaling $150 million. The median value of these seizures was just $1,049, and approximately three-quarters of the seizures were of cash (most of the rest were vehicles). Many of these seizures, including most cash seizures of less than $100, were clustered in the poorest parts of Chicago.5

Such low median forfeiture values likely discourage owners from contesting forfeiture, especially given the expense of fighting back. In some jurisdictions, owners must pay a filing fee to contest. Even modest filing fees can discourage owners of such small sums. And some jurisdictions’ filing fees are substantial. For example, in Hudson County, New Jersey, where law enforcement has seized amounts as small as $11, the filing fee for owners is $175.6 Then, of course, owners must hire their own attorney—if they can afford one. And even if they can afford legal representation, they may still decide it makes more financial sense to cut their losses. Conservatively estimated, hiring an attorney to fight a relatively simple state forfeiture case costs at least $3,0007—more than double the national median currency forfeiture and only $1,500 less than Florida’s median currency forfeiture.

Hiring an attorney to fight a federal forfeiture case is considerably more expensive,8 as Manni Munir, the owner of an independent rental car company based in Houston, found out. A U.S. Drug Enforcement Administration task force pulled over one of Manni’s customers and found a horde of drugs and weapons in his rental car. The task force seized the car and is attempting to forfeit it under federal law, even though Manni has tried to help with the investigation. An attorney he talked to estimated fighting back would cost him at least $5,000, only $2,500 less than he paid for the car when he bought it a few years prior. “If I was Hertz, if I was Avis, they wouldn’t try to seize the car,” Manni said.9

In many states, owners are not entitled to recover attorney fees if they win and may even have to pay the government’s attorney fees if they lose.10 Even where a right to attorney fees does exist, as it does at the federal level and in some states, recovery is not guaranteed. For example, the federal government has avoided paying attorney fees by returning property before it could lose in court, arguing that the owner did not “substantially prevail.”11 From this perspective, challenging a low-value forfeiture might seem like throwing good money after bad.

Continue Reading: Sidebar: Curbing “Excessive Forfeitures”