The Supreme Court in Culley affirmed that “the Constitution requires a timely forfeiture hearing” when the government seeks to deprive a person of their personal property. ¹  As we have shown, most owners will not get a hearing at all. For those who do, they may wait months or years before they have an opportunity to make their case and win their property back. Most statutes do not require the government to move quickly, and often, the government does not. Owners have few avenues to speed up the process. As a result, they face lengthy deprivations and intense pressure to settle.

Stephanie Wilson, a single mother and nursing student in Detroit, spent nearly two years fighting for her car after it was seized by police in June 2019. ²  It was the second time local police seized a car from her under the state’s Controlled Substances Act, and both times they seized it moments after she picked up her son’s father, who was battling addiction, to give him a ride to his mother’s house. No arrests were made and no contraband was found. ³

Under Michigan law, Stephanie had 20 days to contest the seizures. She tried to do so the day after her first car was seized, but the Wayne County Prosecutor’s Office had a rule that claims could not be filed until three days after the seizure, so county staff refused to speak to her. Stephanie tried again four days later, only to be told her paperwork could not be found. She tried again two weeks later and this time was told the deadline had passed. ⁴  

After purchasing another car with her tax refund and having that one seized, Stephanie contested the seizure on time. But, as Figure 7 shows, while owners in Michigan must act quickly or give up all rights to their seized property, prosecutors face no deadline to initiate forfeiture proceedings by filing a complaint. Wayne County prosecutors finally did so four months after the seizure, but Stephanie was still no closer to a hearing. Instead, by the time she joined a class action lawsuit brought by IJ against the county’s seizure and forfeiture practices in February 2020, more than seven months after the seizure, prosecutors had demanded she attend four pretrial conferences—all without a judge present. No hearing had been scheduled, and she still did not have her car. ⁵

Like Michigan, six other states and federal customs law do not set a deadline for when prosecutors must initiate a forfeiture action. ⁶  In one of those states, Massachusetts, Berkshire County prosecutors waited nearly five years before filing a complaint against Malinda Harris’ car—and then took another 10 months to notify her. In that time, Malinda had no legal avenue to contest the seizure as an innocent owner and get her car back. The county only relented and returned her car after the Goldwater Institute, representing Malinda pro bono, threatened to sue. ⁷

As Figure 7 shows, an additional 11 states give prosecutors generous deadlines of 90 days or more, with two states—Nevada and Wyoming—permitting 120 days. CAFRA’s deadline is 90 days from when an owner makes a claim. Extensions can add to the wait: Arkansas prosecutors must file within 65 days but can have up to 120 with an extension. Alabama’s deadline of 42 days from the seizure can be more than doubled by extensions to 97 days. The rules of civil procedure typically also provide lengthy—or unspecified—deadlines before prosecutors must serve complaints on owners, potentially lengthening the time before owners can contest and reach a hearing, as Malinda Harris experienced.

Also like Michigan, most states do not set a deadline for the hearing itself. Only 16 states’ civil forfeiture laws prescribe a timeframe for hearings or trials. ⁸  Nebraska requires a hearing within 90 days of the seizure, while statutes more typically set a deadline of 60 or 90 days from the government’s complaint, the owner’s answer, or, if applicable, a conviction. ⁹  The practical result is that in many states, unless prosecutors, owners, and courts all voluntarily move quickly, owners may wait months or years before reaching a courtroom.

To provide a rough approximation, Table 3 adds the deadlines prescribed by civil forfeiture laws and rules of civil procedure, while also noting where deadlines are unspecified. In half the states, the known deadlines, not counting extensions, add up to at least 188 days—over six months—but most processes leave at least one deadline unspecified. ¹⁰

Table 3: Deadlines toward civil forfeiture hearings, totaled

*New Hampshire gives a deadline for the hearing, but it is unclear. We therefore count it as unspecified.

Of course, these figures cannot account for the realities of civil litigation. Prosecutors or owners may move more quickly. On the other hand, pretrial motions, discovery, court scheduling, or other ordinary litigation delays may slow things down. Especially in states with conviction provisions, civil proceedings may be stayed during a related criminal case, if there is one. Since these provisions often require only that someone—not necessarily the owner—be convicted or plead guilty, innocent owner claimants may have to wait even longer for a chance to win their property back. An additional caveat with Table 3: Civil forfeiture processes vary a great deal across jurisdictions, making comparisons difficult. Still, this simple summing of deadlines suggests property owners in most jurisdictions will not reach a hearing quickly.

And relatively few civil forfeiture statutes allow owners to reach a courtroom faster by requesting an adversarial pretrial hearing. As Table 4 shows, the civil forfeiture laws of just 16 states and the District of Columbia specify a procedure for such pretrial hearings, while another six allow for speedier challenges without explicitly mentioning a hearing. ¹¹  Most are probable cause hearings where the government must show it has probable cause to believe the property is forfeitable in order to hold on to it while the forfeiture case continues. (Unlike the probable cause orders some states require after warrantless seizures, owners can participate in these probable cause hearings, but they only happen on request.) If the government cannot meet that burden, the court can order property released to the owner, possibly with conditions such as a bond or a directive to keep the property within the court’s jurisdiction. ¹²  In others, which we call preliminary hearings, owners can secure release by showing they are likely to prevail at trial (or, in some cases, if the property is not needed for evidence or the owner needs it for legal fees). ¹³  In Illinois, owners can request a pretrial hearing to raise an innocent owner defense.

Under these statutes, if owners know they can ask for a pretrial hearing and they know how to do so, they can get before a judge more quickly, usually within a month or two. But in several states, they must act fast—within 10, 15, or 30 days of seizure or notice—or lose the opportunity.

Table 4: Adversarial pretrial hearings in civil forfeiture laws^a

^a Six states’ civil forfeiture laws mention motions or petitions owners can file to seek the release of the property without specifying a procedure for a hearing. Alaska allows owners to file a petition for release. California allows non-defendants to file a motion for return and defendants to challenge probable cause for the seizure. In Connecticut, owners can challenge the validity of the seizure as part of the criminal process. Nebraska permits innocent owners of record to petition the court for return of their property.  In Nevada, owners can file a “claim for delivery,” but only if the government has not filed a complaint within 60 days; it does not appear that the claim will be ruled on separately, but rather it expedites the litigation by requiring the government to respond. New Hampshire permits innocent owners to petition for the return of seized property.
^b Request timing generally runs from seizure or notice.
^c Hearing timing typically runs from the owner’s request, but in the District of Columbia, owners ask the government to release the property, and the government requests a hearing if it objects. In Georgia, Iowa, and Louisiana, the hearing is held 30 days after a court issues an order to “show cause” to the government and after five days’ notice to the government. In Hawaii, it is held after a court issues a show cause order to the government with 30 days’ notice of the hearing. In Wisconsin, it is held within 40 days of the seizure.
^d In Hawaii, an owner’s request for a probable cause hearing will be set aside if prosecutors file a forfeiture complaint before the hearing takes place.

Civil forfeiture laws in seven states and the District of Columbia, and at the federal level under CAFRA, allow owners to seek the release of their property pending trial if doing without it causes hardship. (See Table 5.) Usually, owners must show they need the seized property for necessities or employment; they may also need to show it will not be disposed of or used for criminal activity; and they may be required to post a bond or agree to other conditions. Most of these provisions allow for a hearing, though hearings are not mandated for Pennsylvania or federal hardship petitions. In the District of Columbia and Idaho, hardship requests follow the same procedure as a probable cause hearing.

Table 5: Hardship hearings and petitions in civil forfeiture laws

*Hearing timing typically runs from the owner’s request, but in the District of Columbia, owners ask the government to release the property, and the government requests a hearing if it objects.

In 12 states, owners can pay a bond to secure their property’s temporary return. (See Table 6.) Usually, the bond is set at fair market value (or the equivalent), but in Alabama and Tennessee, it is twice that. While this can provide relief for some, it may not be within the financial reach of many owners.

Table 6: Bond provisions in civil forfeiture laws

*Here we report the language used in statute.

Pretrial hearings, hardship release, and bond provisions may alleviate the burdens of being without needed cars or cash for at least some property owners, but taking advantage of them will require know-how and come with costs in terms of time and money. And 17 states offer none of these options for securing the temporary return of seized property. As a result, in much of the country, owners awaiting a civil forfeiture hearing are likely to be deprived of the property for months or years before they get their day in court.

No states make data available describing the length of time from seizure to a forfeiture hearing, but data describing how long it took owners to get at least some portion of their property back, whether through litigation or settlement, suggest owners can be deprived for a long time. As Table 7 shows, in half of Virginia cases where property was returned, it took longer than nine months. The slowest quarter took more than 16 months. Similarly, the median return in Wyoming took more than eight months, while the slowest quarter took almost a year.

Table 7: Median and 75th percentile days to return, with percentage of properties returned, four states

Returns in Florida and Kansas happened more quickly, possibly because both states provide pretrial hearings. In Florida, another likely factor is the $1,000 filing fee and $1,500 bond the government must pay when filing a complaint, mentioned above. The complaint and payments are due 45 days from the seizure. Prosecutors thus have an incentive to decide before the deadline whether to pursue forfeiture, return property, or reach a settlement with owners. And in fact, about a third of Florida’s returns of currency are settlements, and more than half occur within 45 days.

Overall, however, our analysis of civil forfeiture deadlines and the limited data available suggest that in many jurisdictions, property owners with the wherewithal to contest forfeiture are likely to be deprived of their property for a long time before reaching a hearing. These lengthy deprivations cause hardship for owners, particularly those who are already disadvantaged—and who tend to be targets of civil forfeiture. Lengthy deprivations also create enormous pressure to settle or pay other fees, regardless of owners’ guilt or innocence.

Hardship for the already disadvantaged

Being deprived of a car or cash for even a few months would cause significant hardship for many, if not most, Americans, and particularly those of modest means. Unfortunately, research suggests forfeiture often preys on precisely those who can least afford it—the poor and racial and ethnic minorities.

Courts have repeatedly recognized the importance of cars in the everyday lives of Americans. In Stephanie Wilson’s challenge to Wayne County’s vehicle forfeiture program, the Sixth Circuit observed, “a personal vehicle used for transportation is almost as precious as a home.” ¹⁴  The court cited other federal circuits declaring that cars are often a person’s “most valuable possession”; they provide “access to jobs, schools, and recreation as well as to the daily necessities of life”; and being without one’s primary mode of transportation “can result in missed doctor’s appointments, missed school, and perhaps most significant of all, loss of employment.” ¹⁵

Research on the impact of driver’s license suspensions supports federal courts’ concern that being without access to a car can have dramatic negative effects. More than three-quarters of Americans drive to work, and losing the ability to drive often leads to job loss. ¹⁶  A New Jersey survey found that 42% of respondents lost their jobs after their driver’s license was suspended, while in a survey of participants in a Phoenix program to help people regain driving privileges, nearly a third did. ¹⁷  Researchers estimate license suspensions in Texas cost $5 billion in lost earnings annually. ¹⁸

Being suddenly deprived of much-needed cash can also present significant hardship, particularly for poorer Americans. About a quarter of Americans, and more than a third of black and Hispanic people, report having difficulty making ends meet. ¹⁹  People struggling to make ends meet are likely to also struggle with a financial shock like the sudden seizure of cash, even in fairly small sums. Economists measure “financial fragility” as difficulty coming up with $2,000 in a month, and roughly a quarter of all Americans and a third or more of black and Hispanic people report they could not or probably could not cope with such a shock. ²⁰  The financially fragile are less likely to have savings to draw upon and are more likely to turn to family or friends, sell possessions, or work more to cover a sudden financial loss—if they are able to. ²¹

Research suggests those least capable of coping with the loss of a vehicle or cash are disproportionately likely to fall victim to forfeiture. Several studies show that law enforcement in areas with larger populations of racial and ethnic minorities conduct more forfeitures and bring in more forfeiture revenue. ²²  For example, one study found that a 10 percentage point increase in the black population was associated with a 38% increase in forfeiture revenue per capita. ²³  Other investigations have found that seizures and forfeitures are disproportionately concentrated in low-income—and often predominately minority—communities. ²⁴  One possible reason lower-income people and minorities are more likely to be victims of forfeiture is that they are more likely to be stopped and searched by police, despite those searches being less likely to turn up contraband. In a study of over 60 million traffic stops across 20 states, for instance, black and Hispanic drivers were twice as likely to be searched in general and twice as likely to be subjected to a consent search. ²⁵  Another possible reason lower-income people and minorities are more likely to be victims of forfeiture is that they are more likely to be “unbanked” and therefore to be carrying cash that can be seized. ²⁶

Pressure to settle

Once the government has possession of someone’s personal property, be it cash or a car, it has the upper hand. As we have described, owners must take action, and potentially costly action—hiring an attorney, taking time off work, and so on—to win it back. In most jurisdictions, prosecutors can drag out the forfeiture process, and owners have few avenues to more quickly assert their rights. And if owners do manage to get before a neutral arbiter, the government usually must meet a low standard of proof—or the owner may bear the burden of proving their own innocence.

Combined, these factors place enormous pressure on property owners to settle with the government, giving up a portion of their property’s value as the least-worst outcome. And because forfeiture proceeds typically benefit seizing agencies and prosecutors, they have strong incentives to persuade owners to settle—or even to coerce the payment of fees or other concessions.

This is what federal prosecutors tried to do when Cristal Starling informed them her ex-boyfriend had been acquitted. Instead of simply returning her $8,040, the government offered to settle and split the money in half—even while knowing it was not connected to any crime. ²⁷  Presumably, they expected she would rather secure half than try to fight them. Cristal refused, and with pro bono legal help, won her money back. But few others will be able to do the same.

IJ’s study of Indiana forfeiture cases clearly illustrates the problem. When owners contested forfeiture, the most common outcome—by far—was not their case reaching a judge. It was settlement. More than 86% of contested cases ended with a settlement, and in most of them, the government agreed to give back at least half the value of the property, usually cash. ²⁸  

It is not clear how such settlements serve justice. If the government believed an owner was truly guilty, it would be returning property to a criminal. And if owners did nothing wrong, they would have been punished for no reason. The government’s financial incentives and the pressures civil forfeiture places on owners suggest the latter is the more common result.

The government can also use the threat of criminal penalties to persuade owners to relinquish property. Michigan data show that one in 10 forfeitures involved a person cooperating with law enforcement to avoid criminal charges. No other state reports such data, but data from California and Minnesota show nearly all convictions associated with forfeitures—99% and 100%—are in fact plea deals, raising the concern that owners are giving up property in return for reduced charges. ²⁹  Similarly, a news investigation found that 75% of state civil forfeiture cases in Seward County, Nebraska, resulted from owners signing on-the-spot waivers when stopped on a highway. Officers would present motorists with the choice of signing the waiver, thereby giving up all rights to cash they were carrying, or risking being prosecuted for a felony. ³⁰

Settlement, plea deals, and roadside waivers are not the only ways the government can leverage civil forfeiture to generate revenue. Wayne County, Michigan, where Stephanie Wilson’s car was seized, offers a case study in how prosecutors can use the threat of drawn-out civil forfeiture proceedings to extract money from property owners. Under the county’s vehicle seizure program, owners had to pay a “redemption” fee, plus fees for towing and storage, to get their cars back. The redemption fee was $900 for the first seizure, $1,800 for the second, and $2,700 for the third. While a car was in the county’s possession, storage fees accrued daily. ³¹

When Stephanie contested the second seizure of her car, prosecutors repeatedly pressured her to instead pay the $1,800 redemption fee, plus towing and storage fees, to recover her vehicle, warning her that a hearing could be months away. ³²  This was the purpose of the multiple pretrial conferences she was made to attend without a judge present. When Stephanie told prosecutors she could not afford the redemption fee, they offered to waive other fees if she could return with a “reasonable amount of money.” ³³

From 2018 to 2023, Wayne County collected at least $3 million in such fees from vehicle seizures. ³⁴  On a far smaller scale, the police chief of Chanute, Kansas, explained to a reporter that he has a policy to “charge a consistent $700 for administrative and storage fees in lieu of proceeding through a civil asset forfeiture action to return vehicles to their owners.” ³⁵  

As with settlements, it is not clear how such “redemption” or “administrative” fees that immediately return cars to their owners serve justice, though they obviously generate revenue. As a judge on the Sixth Circuit observed: