Failure Means Forfeiture
From inadequate notice to the cost of hiring counsel, there are any number of reasons rightful owners who have done nothing wrong may stumble on the path to a civil forfeiture hearing. Regardless, the consequences of failure remain the same. Not only does failure mean losing the opportunity to be heard by a judge at trial, but it also means almost certain forfeiture.
More than that, failure means the effective standard of proof for forfeiture is not the standard at trial, such as preponderance of the evidence or clear and convincing evidence, as indicated in our civil forfeiture law grades. Instead, it is an agency’s assertion of probable cause for the seizure. And under most civil forfeiture laws, not even this assertion will be reviewed by a court.
As Table 2 shows, only 19 states with civil forfeiture demand the government demonstrate probable cause to a court regardless of whether an owner contests the forfeiture. Usually, the government must do so by seeking a court order affirming probable cause for a warrantless seizure after the fact, but a few states’ statutes explicitly require the government to make a showing of probable cause when seeking a default order after the owner fails to contest. 1 In two states with strong or moderate conviction provisions, Connecticut and Missouri, court involvement is required as part of the criminal process.
Under the laws of the other 27 states with civil forfeiture and the District of Columbia, as well as under federal law, not even this modest level of judicial review is required before property is permanently forfeited.
The most extreme of these are laws that permit or even require the seizing agency or prosecutors to forfeit seized property administratively—that is, without any court involvement—if an owner fails to contest. As described above, this is how federal administrative forfeiture procedures work: The agency that seized property decides whether forfeiting it is justified. Rarely do federal agencies decide their own seizures were unjustified and return property to owners. They did so in fewer than 8% of administrative forfeiture cases according to Northwestern University law professor Stephanie Holmes Didwania’s analysis of DOJ data covering 1998 to 2019. 2
The story is similar in the District of Columbia and 10 states with administrative forfeiture. If owners fail to file a claim (or, in New Jersey, an answer), forfeiture is typically automatic. In California and Rhode Island, prosecutors “shall prepare a written declaration of forfeiture.” 3 In Georgia, the property is forfeited “by operation of law,” while in Washington state, “the property seized shall be deemed forfeited.” 4 Under New Jersey law, if no answer is filed, “the property seized shall be disposed of.” 5
Under these administrative forfeiture provisions, unless a warrant is obtained prior to seizure, probable cause for both the initial seizure and the ultimate forfeiture is determined by the government alone.
In the remaining 17 states, judicial involvement is required, but it is generally limited to entering an order of default judgment after the government shows notice was provided and the deadline for a claim or answer has passed. 6 These civil forfeiture laws do not demand courts conduct any substantive review of the government’s case for seizing or forfeiting the property. 7
Table 2: Civil forfeiture without judicial review
If no claim or answer is filed, will courts review the government’s evidence for probable cause?
| Yes. Judicial review is required after a seizure, for a default order, or as part of criminal procedure. (19 states) | Alabama, Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Illinois, Indiana, Kansas, Louisiana, Mississippi, Missouri, New Hampshire, Oklahoma, Pennsylvania, Tennessee, Vermont, Wyoming |
| No. The government forfeits administratively. (10 states, D.C., federal law) | California, District of Columbia, Georgia, Hawaii, Iowa, Michigan, Minnesota, New Jersey, Rhode Island, Washington, West Virginia, federal law (both CAFRA and customs) |
| No. Prosecutors can seek a default judgment for failure to claim or answer, but the court is not required to review the basis for forfeiture. (17 states) | Arkansas, Idaho, Kentucky, Maryland, Massachusetts, Nebraska, Nevada, New York, North Dakota, Ohio, Oregon, South Carolina, South Dakota, Texas, Utah, Virginia, Wisconsin |
When the government serves as its own judge and has a financial interest in the outcome, the risk of erroneously depriving people of their property will be high. In contrast to the 8% rate of returns among federal administrative forfeitures, Professor Didwania found that nearly 37% of civil-judicial forfeitures resulted in property being returned to an owner. This high return rate when forfeitures are presided over by a neutral judge, she observed, “is consistent with claims that the government uses a ‘seize-first, ask questions later’ approach to forfeiture.” 8
Numerous examples underscore the need for meaningful, independent review. At Indianapolis’ FedEx hub, officers deemed packages suspicious simply because shipping boxes were new or taped on all seams; no signature was required; or the destination was California. If a dog later alerted on the package, allowing police to obtain a warrant to open it, cash would be seized even if no contraband was found. 9 The DEA considered last-minute flights to major U.S. cities a reason to stop and possibly search air travelers. 10 Highway seizures have been justified by supposed indicators of criminal activity including common behaviors like seeming nervous when stopped by law enforcement, having a “large amount of fast food wrappers in the vehicle,” and a “six pack of Red Bull energy drinks.” 11