Introduction

Cristal Starling dreamed of trading her food cart for a food truck. The hard-working small-business owner from Rochester, New York, has had custody of her grandnephew since he was a baby. The youngster has significant medical needs, and Cristal hoped a food truck would allow her to earn more money for their little family. So Cristal saved. Eventually, she was sitting on a nest egg of more than $8,000. Cristal’s American Dream seemed within reach.

Until, that is, the Rochester Police Department and the U.S. Drug Enforcement Administration joined forces to dash it.

One October morning in 2020, local police simultaneously raided Cristal’s apartment and a residence supposedly linked to Cristal’s then-boyfriend. They did this because they believed the man, who was staying with Cristal, was a drug dealer. Police found narcotics at the other residence, but at Cristal’s apartment they found nothing illegal. They did find Cristal’s savings, however.

Police arrested Cristal’s now-ex and seized Cristal’s $8,040, claiming it was her ex’s drug proceeds. They then turned the cash over to the DEA, which notified Cristal that it intended to keep her savings permanently.

Without an attorney, Cristal filed a claim with the DEA, thereby preventing the automatic forfeiture of her savings and forcing the agency to file a case in court. But then she fell into a trap. She didn’t realize she had to file a second claim to actually get a judicial hearing. After she missed the deadline, the DEA asked the court for a default judgment in its favor—even though it knew Cristal’s ex had been acquitted of the alleged drug offenses that supposedly justified the money’s seizure. Sadly, the court obliged. ¹

Cristal’s dream had become a nightmare thanks to a process known as civil forfeiture—and Cristal, an Institute for Justice client, is not alone. In most states and at the federal level, police and prosecutors can seize people’s cash and other property with merely probable cause to believe it is related to criminal activity and then move to permanently keep—that is, forfeit—it without ever having to prove the owner, or anyone, committed a crime.

Civil forfeiture is an in rem proceeding rather than an in personam one—a proceeding against a thing rather than a person. In other words, prosecutors file a case against property as though the property itself did something wrong. This legal fiction of “guilty property” leads to odd case names like United States of America v. $8,040 United States Currency, the original name of the case against Cristal’s savings. More importantly, it means that to try to get their property back, owners must intervene in a lawsuit against their property.

Civil forfeiture is also a civil proceeding. As such, the rules are generally much less stringent than in criminal court. The standard of proof for finding property “guilty” is usually lower—often much lower—than that required to criminally convict a person, and there is typically no right to an attorney. And because civil forfeiture is a proceeding against property, no person may ever be convicted, charged, or even arrested in connection with an alleged crime that gave rise to the seizure.

Civil forfeiture stands in contrast to criminal forfeiture, which takes place in criminal court and requires prosecutors to prove a person is guilty of a crime beyond a reasonable doubt and then, in the same proceeding, prove the person’s property is connected to that crime.

Making matters worse, most states and the federal government give law enforcement—police and prosecutors—a large financial stake in forfeiture, allowing them to keep and spend some or all of the proceeds, often with little oversight. For instance, the Rochester PD stood to collect up to 80% of Cristal’s money, its bounty for seizing and handing the cash off to the DEA, with the remainder going to a federal forfeiture fund.

Given how financially rewarding and procedurally easy civil forfeiture is for law enforcement, it should come as no surprise that it is big business: Every year, billions of dollars in cash, cars, and other property are seized and forfeited at the local, state, and federal levels. Yet this is a relatively recent development.

Civil forfeiture has a long history, but it did not become the juggernaut that it is today until the federal government made it a weapon in the war on drugs. Indeed, the birth of civil forfeiture as we now know it can be traced to the federal Comprehensive Crime Control Act of 1984. ² To promote drug enforcement, the CCCA created the modern financial incentive, allowing federal law enforcement agencies to keep 100% of forfeiture proceeds. It also created the federal “equitable sharing” program, which allows state and local agencies to partner with federal agencies to forfeit property under permissive federal laws and receive a cut of the proceeds—sometimes more than they would be entitled to under state law. (This is the program the Rochester PD used to transfer Cristal’s savings to the DEA.) Thus, the CCCA also gave state and local agencies a financial incentive to pursue forfeiture. In addition, the federal government encouraged states to create similar financial incentives under their own laws, which most of them did. ³

In the intervening years, federal and state laws have expanded the reach of civil forfeiture. Although civil forfeiture remains most closely associated with drug crimes, there are now hundreds of distinct statutes authorizing forfeiture under federal law, many of which have nothing to do with drugs. ⁴  States also authorize forfeiture for a wide variety of offenses. ⁵

By contrast, during the Founding Era—and for much of the country’s history—civil forfeiture was largely reserved for piracy, customs, and revenue cases. Moreover, one of the primary historical justifications for civil forfeiture was the inability to exercise jurisdiction over the owners of ships involved in piracy or customs violations. Since distant owners of foreign ships could not be prosecuted, seizing their property was considered the only option for addressing an offense. ⁶ Such cases bear little resemblance to many, and perhaps most, contemporary forfeiture cases. They certainly bear little resemblance to Cristal’s case.

During the Founding Era, civil forfeiture was also limited in other, even more striking, ways: Although the law allowed for the forfeiture of “guilty property” belonging to innocent people, recent research shows the executive branch very frequently returned seized property to owners who could plausibly plead innocence or ignorance, suggesting early civil forfeiture was, in practice, “constrained by a deep belief in the impropriety of taking property from those who lacked real culpability.” ⁷ And at least one scholar has pointed out that the early Supreme Court was “attentive to the concerns of innocent owners whose property might be forfeited because of others’ criminal conduct.” ⁸

The incongruity between what civil forfeiture started as and what it is today has attracted the notice of the U.S. Supreme Court. In a concurring opinion joined by Justice Clarence Thomas in the 2024 case Culley v. Marshall, Justice Neil Gorsuch asked: “Why does a Nation so jealous of its liberties tolerate expansive new civil forfeiture practices that have ‘led to egregious and well-chronicled abuses’?” ⁹

In common with the prior three editions, this fourth edition of Policing for Profit grades the civil forfeiture laws of the 50 states, the District of Columbia, and the federal government on core components that provide a sense of the threat these laws pose to property and due process rights. Unfortunately, these grades reveal that in most of the country, civil forfeiture remains both highly lucrative and extremely easy for law enforcement. Thirty-five states and the federal government receive an overall grade of D+ or below. Since the last edition of this report was published in 2020, only one state—Maine—has dramatically improved its forfeiture laws. It did so by abolishing civil forfeiture and strengthening innocent owner protections. Furthermore, the pace of forfeiture reform has slowed compared to the prior five-year period.

For the first time, this edition also offers a comprehensive look at what happens after property gets seized but before a civil forfeiture case gets to court. This matters because there is a question not just of when a case gets to court but also of whether it gets to court at all: For a case to be heard by a judge, an owner usually needs to contest the forfeiture—a process that is, as Cristal found, rife with pitfalls. And even when there is a hearing, it may be a long time coming, often leaving owners without their property for months, if not years.

For all 50 states, the District of Columbia, and the federal government, this edition details what must happen for an owner to get their day in court, whether the onus is on the owner to get the ball rolling, and how long it takes for a case to get in front of a judge. This new material provides greater insight into, as Justices Gorsuch and Thomas put it, “whether, and to what extent, contemporary civil forfeiture practices can be squared with the Constitution’s promise of due process.” ¹⁰

In addition, this edition draws on the largest collection of forfeiture data yet assembled to provide an up-to-date look at the immense size and scope of forfeiture at the state and federal levels, including equitable sharing.

This edition also marshals those data, along with other research, to critically assess whether all this forfeiture is fighting crime or living up to other policy justifications. On balance, it finds evidence justifying forfeiture to be lacking, suggesting civil forfeiture violates property and due process rights for no good reason.

Finally, and perhaps most importantly, Policing for Profit offers solutions, showing how legislatures and courts can curtail civil forfeiture, protecting the property and due process rights of all Americans, without impeding law enforcement or putting the public at risk.