Standard of Proof

The third fundamental problem with civil forfeiture laws graded by this report is the frequently low standard of proof required to tie property to an alleged crime in order to forfeit it. Even when a case makes it to court, the standard needed to forfeit property civilly is generally less than the proof beyond a reasonable doubt needed to prove a person guilty of a crime and impose criminal penalties.

Low standards of proof stack the deck in favor of the government and against property owners, making it likely that people, including entirely innocent people, will lose property unjustly. Unfortunately, many states and the federal government have very low standards of proof for civil forfeiture. See Figure 3.

Figure 3: Standards of proof for civil forfeiture

The most common standard, the law in 17 states and at the federal level, is a preponderance of the evidence. To meet this standard, the government need only show that property is more likely than not connected to a crime. Preponderance of the evidence is often thought of as a 51% standard because the evidence need tilt only slightly in the government’s favor for it to prevail.

Massachusetts sets an even lower standard, mere probable cause. This is the same low standard that police need to make an arrest, obtain a search warrant, or, indeed, seize property in the first place.

For at least some types of property, 12 states and the District of Columbia set a standard of clear and convincing evidence. Although a meaningfully higher standard than probable cause or preponderance, clear and convincing evidence falls short of proof beyond a reasonable doubt.

Some states have recognized the problem with low standards of proof and tried to remedy it by adopting higher standards. One, Florida, requires proof beyond a reasonable doubt for civil forfeiture. However, the process remains a civil one focused on the property’s guilt, adjudicated in civil court, not a criminal one focused on a person’s guilt in criminal court.

Meanwhile, 15 states have provisions purporting to require a conviction in criminal court before property can be forfeited in civil court. But in fact, most of these “requirements” are riddled with loopholes.

First, conviction provisions often apply only if owners timely and correctly file a claim, which they must do without the benefit of an attorney if they cannot afford one or if the low value of property makes hiring an attorney uneconomical. If owners fail to do so, the government can usually forfeit their property without a conviction. In addition, several conviction provisions apply only to certain types of property. As a result of loopholes like these, many forfeitures still happen without accompanying convictions. As detailed later, among four states with conviction provisions and usable data on convictions, only 54% of forfeitures occur with convictions. Moreover, most provisions are met so long as any person, not necessarily the property’s owner, is convicted. This means the government can convict someone else in criminal court and still forfeit an owner’s property in civil court.

At bottom, the problem is that, with or without conviction provisions, civil forfeiture remains civil forfeiture, a system in which property is pursued in civil court and owners may or may not be pursued in criminal court on a related offense. In contrast to this two-track system, criminal forfeiture is a one-track system where everything happens in criminal court. As such, property owners enjoy far greater due process protections, greatly reducing the risk that people will lose property unjustly.

Today, three states have only criminal forfeiture: Maine, Montana, and New Mexico. In addition, North Carolina has only criminal forfeiture in most cases, though prosecutors can pursue civil forfeiture in racketeering cases, where the standard of proof is preponderance of the evidence. These states receive highest marks for standard of proof.

The prior edition of Policing for Profit counted Montana as having a conviction provision rather than criminal forfeiture. Upon closer inspection of the state’s forfeiture statute, we revised our interpretation. The prior edition also mistakenly included Nebraska as a state that had only criminal forfeiture based on a reform that inadvertently contained a major loophole allowing most civil forfeitures to continue. ¹