Appendix A: State Law Grading Methods
The tables below include the grades each state earns on the three elements that make up the civil forfeiture law grades: (1) standard of proof, (2) innocent owner burden, and (3) financial incentive.
Table A1 shows the grades related to standards of proof. Only four states, Maine, Montana, New Mexico, and North Carolina, earn an A for having actually or effectively abolished civil forfeiture and replaced it with criminal forfeiture, which requires proof of a property owner’s guilt beyond a reasonable doubt. One state, Florida, earns a C+ for requiring that property’s connection to criminal conduct be proved beyond a reasonable doubt. Eleven states demand clear and convincing evidence of property’s links to crime, an intermediate standard that earns a C. A plurality of states—17—and the federal government earn a D with a standard of preponderance of the evidence. Under this standard, the government need only show that it is more likely than not that property is related to a crime. One state, Massachusetts, earns an F for requiring mere probable cause, the same low standard needed to justify an arrest, carry out a search, or seize property in the first place. The District of Columbia and Kentucky earn C- and D+ grades, respectively, for mixed standards.
Fifteen states have conviction provisions ranging from weak to strong, and these provisions were factored into their standard of proof grades. While such provisions fall short of criminal forfeiture, their inclusion generally resulted in a slight improvement over the grade a state would have received based on its standard of proof alone.
Missouri earns a B for a strong conviction provision that requires an owner’s conviction—even if the owner does not contest forfeiture—and has no property-based limits. Moderate conviction provisions in Arizona and Connecticut earn a B-. Arizona’s requires conviction of an owner, though it does not apply if an owner does not contest. Connecticut’s requires a conviction, though not necessarily that of an owner, and applies even if an owner does not contest forfeiture. Neither of the two states’ provisions has property-based limits, though the grading rubric allows for them. Ten states earn a C+ with weak conviction provisions that do not require conviction of an owner and do not apply if an owner fails to contest or if a non-owner waives the requirement. Some of these set property-based limits. New Hampshire also earns a C+ because it purports to require an owner’s conviction but also makes it the owner’s burden to prove innocence. Similarly, North Dakota earns a C+ because it requires conviction of an owner, but this requirement can be waived if property can be tied to a crime beyond a reasonable doubt.
Table A1: Standard of Proof Grades
| Grade | Standard of Proof | States |
|---|---|---|
| A | Criminal forfeiture | Maine, Montana, New Mexico, North Carolina |
| B | Strong conviction provision
| Missouri |
| B- | Moderate conviction provision
| Arizona, Connecticut |
| C+ | Beyond a reasonable doubt or weak conviction provision
| Arkansas, California, Florida,a Iowa, Michigan, Minnesota, New Hampshire,b New Jersey, North Dakota,c Oregon, Vermont, Virginia, Wisconsin |
| C | Clear and convincing evidence | Colorado, Kansas, Maryland,d Nebraska, Nevada, New York,d Ohio, Pennsylvania, Utah, Washington, Wyoming |
| C- | Clear and convincing evidence/Preponderance of the evidence | District of Columbiad |
| D+ | Clear and convincing evidence/Probable cause | Kentucky |
| D | Preponderance of the evidence | Alabama, Alaska, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Louisiana, Mississippi, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, West Virginia, Federal Government |
| F | Probable cause | Massachusetts |
a Florida does not have a conviction provision; its standard is beyond a reasonable doubt.
b New Hampshire’s conviction provision purports to require an owner’s conviction but also makes it the owner’s burden to prove innocence.
c North Dakota’s conviction provision requires conviction of an owner, but this requirement can be waived if property can be tied to a crime beyond a reasonable doubt.
d The District of Columbia and Maryland have weak conviction provisions that apply to only a single type of property. These provisions were not factored into those states’ grades. New York has a “post-conviction” civil forfeiture process that requires a conviction in addition to a “pre-conviction” civil forfeiture process that does not. We are grading the latter.
With respect to innocent owner claims, the federal government and most states reverse the traditional burden of proof by forcing third-party owners to prove that they are innocent of and had no knowledge of the crime to which their seized property is allegedly linked in order to recover it. As Table A2 illustrates, only 19 states and the District of Columbia require the government to prove guilt in order to forfeit any type of property, thereby earning an A grade for their innocent owner burdens. Twenty-five states and the federal government earn F grades for requiring owners to establish their innocence. The other six states earn C grades for offering limited protections to innocent owners, with the burden generally depending on the type of property.
Table A2: Innocent Owner Burden Grades
| Grade | Innocent Owner Burden | States |
|---|---|---|
| A | Government’s burden | Alabama, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Iowa, Maine, Mississippi, Montana, Nevada, New Mexico, New York, Oregon, Pennsylvania, Utah, Washington, Wisconsin |
| C | Depends on the property | Indiana, Kentucky, Maryland, Michigan, Ohio, Tennessee |
| F | Owner’s burden | Alaska, Arkansas, Georgia, Hawaii, Idaho, Illinois, Kansas, Louisiana, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, North Carolina, North Dakota, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Vermont, Virginia, West Virginia, Wyoming, Federal Government |
Turning to the financial incentive grade, the federal government and most states direct some or all forfeiture proceeds to law enforcement. As shown in Table A3, 25 states and the federal government earn F grades for directing up to 100% of forfeiture proceeds to law enforcement. In another seven states, between 90 and 95% of proceeds go to law enforcement, earning D grades. And 12 states earn C grades for directing between 45 and 80% to law enforcement. Only six states and the District of Columbia earn A grades for barring forfeiture proceeds from flowing into law enforcement accounts.
Table A3: Financial Incentive Grades
| Grade | Proceeds Awarded | States |
|---|---|---|
| A | 0% to 5% | District of Columbia, Maine, Maryland, Missouri, New Mexico, North Carolina, Wisconsin |
| B | 5.1% to 20% | |
| C | 20.1% to 80% | Alaska, California, Colorado, Connecticut, Florida, Louisiana, Mississippi, Nebraska, New York, Oregon, Texas, Vermont |
| D | 80.1% to 95% | Illinois, Indiana, Minnesota, New Hampshire, Rhode Island, South Carolina, Washington |
| F | 95.1% to 100% | Alabama, Arizona, Arkansas, Delaware, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Montana, Nevada, New Jersey, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, Virginia, West Virginia, Wyoming, Federal Government |
After states were assigned their respective grades, the standard of proof and innocent owner burden grades were combined into a single “burden” grade by creating a weighted average, where standard of proof accounted for 66% of the grade and innocent owner burden for 33%. These weights reflect the relative difficulty each process represents for law enforcement agencies in forfeiting seized property. The burden grades were then combined with financial incentive grades into a single weighted grade by assigning a weight of one to the burden grades and a weight of three to the financial incentive grades, based on the premise that law enforcement agencies are more encouraged to pursue forfeiture by the percentage of forfeiture proceeds directed to law enforcement accounts than by the relative ease of the forfeiture process. This premise has been borne out by a 2018 study of whether more burdensome and less rewarding state forfeiture laws lead to greater equitable sharing activity, as local law enforcement agencies seek to circumvent good state laws by forfeiting property under federal law. 1 The study tested IJ’s weighting scheme against two other models and found it to be the best predictor of equitable sharing activity.