In these and other ways, civil forfeiture threatens not only property rights but also due process rights. Indeed, in 2017, U.S. Supreme Court Justice Clarence Thomas questioned whether modern civil forfeiture laws “can be squared with the Due Process Clause and our Nation’s history.” 1
Civil forfeiture is not only a civil process, it is an “in rem” proceeding, meaning it is a lawsuit against the property, not the person. (Hence, odd case names like Richardson v. $20,771.00U.S. Currency and In re: U.S. Currency $31,780; 2012 Volkswagen Jetta, VIN 3VW3L7AJ0CM366141.) 2
As a result, Justice Thomas noted, owners can lose property even when innocent, and procedural protections common to criminal proceedings usually do not apply.
Justice Thomas also observed that today’s civil forfeiture laws have expanded far beyond their once-narrow historical purposes—specifically, taking property in piracy and customs cases when the owner was overseas and outside U.S. jurisdiction. 3
Now forfeiture attaches to hundreds of crimes, many if not most of which are purely domestic. The U.S. Department of Justice’s forfeiture database, for example, contains over 377 unique statutes authorizing forfeiture. 4
Forfeiture also poses a separation of powers concern. In allowing agencies to self-fund outside the normal appropriations process and with little oversight, it undermines legislatures’ power of the purse and invites questionable expenditures, such as $70,000 for a muscle car in Georgia, 5
$250,000 for lavish travel and meals in New York, 6
and $300,000 for an armored vehicle in Iowa. 7
Recent rulings from the U.S. and Indiana Supreme Courts highlight another constitutional problem with forfeiture: If disproportionate to the alleged crime, a forfeiture can violate the Eighth Amendment’s prohibition on excessive fines. 8
And forfeiting an innocent person’s property is always disproportionate.
Beyond its constitutional problems, forfeiture poses policy concerns. For example, forfeiture’s financial incentive may promote negative interactions between police and the public, a particular risk to communities of color. 9
Indeed, there is evidence forfeiture disproportionately affects Black men. 10
And recent research finds increases in arrest rates for Blacks and Hispanics during times of fiscal stress and when law enforcement can benefit financially from forfeiture under state law. 11
Not only may forfeiture target communities least equipped to fight back, it may further burden lower-income and other disadvantaged communities by depriving them of needed resources. 12
This third edition of Policing for Profit presents the largest collection of state and federal forfeiture data yet assembled and provides newly updated grades of state and federal civil forfeiture laws. It also draws on a growing body of evidence regarding whether forfeiture works to fight crime. 13
The conclusion: Civil forfeiture overpromises and underdelivers.