Policing for Profit: The Abuse of Civil Asset Forfeiture is the most comprehensive national study to examine the use and abuse of civil asset forfeiture and the first study to grade the civil forfeiture laws of all 50 states and the federal government.
Under state and federal civil asset forfeiture laws, law enforcement agencies can seize and keep property suspected of involvement in criminal activity. Unlike criminal asset forfeiture, with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to permanently lose her cash, car, home or other property.
Incentives for Abuse
In most states and under federal law, law enforcement can keep some or all of the proceeds from civil forfeitures. This incentive has led to concern that civil forfeiture encourages policing for profit, as agencies pursue forfeitures to boost their budgets at the expense of other policing priorities.
These concerns are exacerbated by legal procedures that make civil forfeiture relatively easy for the government and hard for property owners to fight. For example, once law enforcement seizes property, the government must prove it was involved in criminal activity to forfeit or permanently keep it. But in nearly all states and at the federal level, the legal standard of proof the government must meet for civil forfeiture is lower than the strict standard of “beyond a reasonable doubt” required for criminal convictions.
Likewise, many jurisdictions provide an “innocent-owner” defense that allows owners to get their property back if they had no idea it was involved in a crime. However, in most places, owners bear the burden of establishing their innocence. In other words, with civil forfeiture, property owners are effectively guilty until proven innocent.
Finally, federal civil forfeiture laws encourage abuse by providing a loophole to law enforcement in states with good laws for property owners: “equitable sharing.” With equitable sharing, state law enforcement can turn over seized assets to the federal government, or they may seize them jointly with federal officers. The property is then subject to federal civil forfeiture law—not state law. Federal law provides as much as 80 percent of the proceeds to state law enforcement and stacks the deck against property owners. Thus, the equitable sharing loophole provides a way for state and local law enforcement to profit from forfeitures that they may not be able to under state law.
Extent of Forfeiture Use
In Part I of this study, criminal justice researchers Marian R. Williams and Jefferson E. Holcomb of Appalachian State University and Tomislav V. Kovandzic of the University of Texas at Dallas find the use of asset forfeiture is extensive at all levels of government and growing:
In 2008, for the first time in history, the U.S. Department of Justice’s Assets Forfeiture Fund (AFF) held more than $1 billion in net assets—that is, money forfeited from property owners and now available for federal law enforcement activities after deducting various expenses. A similar fund at the U.S. Treasury Department held more than $400 million in net assets in 2008. By contrast, in 1986, the year after the AFF was created, it took in just $93.7 million in deposits.
State data reveal that state and local law enforcement also use forfeiture extensively: From 2001 to 2002, currency forfeitures alone in just nine states totaled more than $70 million. This measure excludes cars and other forfeited property, as well as forfeitures from many states that did not make data available for those years, and so likely represents just the tip of the forfeiture iceberg.
Equitable sharing payments to states have nearly doubled from 2000 to 2008, from a little more than $200 million to $400 million.
Policing for Profit
Civil forfeiture encourages policing for profit according to an analysis of national data by Williams, Holcomb and Kovandzic. Specifically, they find that when state laws make forfeiture more difficult and less rewarding, law enforcement instead takes advantage of easier and more generous federal forfeiture laws through equitable sharing.
The researchers tested three elements of state law and found that all three, either independently or in combination, affect equitable sharing proceeds. As state laws improve for property owners, use of the equitable sharing loophole rises:
Profit Motive: Law enforcement agencies in states with no profit motive (no forfeiture proceeds to law enforcement) will receive more in equitable sharing than agencies in states with a 100-percent profit motive—an increase of $30,000 per year for an average-sized law enforcement agency, representing an increase of 25 percent of equitable sharing dollars.
Innocent Owner Burden: Presuming owners are innocent instead of guilty, thus better protecting owners and making civil forfeiture harder for law enforcement, leads to an increase in equitable sharing of $27,600 per year for an average-sized law enforcement agency, growth of about 23 percent.
Standard of Proof: In states where owners are presumed innocent, raising by one level the standard of proof the government must meet to forfeit property leads to an increase in equitable sharing payments of $16,860 per year for an average-sized agency, an increase of about 14 percent.
These results demonstrate not only that federal equitable sharing is a loophole that state and local law enforcement use to circumvent strict state laws but also that pursuit of profit is a significant motivator in civil forfeiture actions. Simply put, when laws make civil forfeiture easier and more profitable, law enforcement engages in more of it.
Grading Forfeiture Laws and Behavior
In Part II, Institute for Justice attorney Scott Bullock details the civil forfeiture laws and data for each state and the federal government. He also grades the states based on the same three elements of state law Williams, Holcomb and Kovandzic test, as well how much state and local law enforcement use the equitable sharing loophole. Bullock finds:
Only three states—Maine, North Dakota and Vermont—receive a combined grade of B or higher. The other 47 states all receive Cs or Ds.
Most state civil forfeiture laws provide little protection to property owners. Six states receive an F and 29 states receive a D for their laws alone. Lax federal laws earn the federal government a law grade of D-.
Eight states receive a B or higher for their laws: Indiana, Maine, Maryland, Missouri, North Carolina, North Dakota, Ohio and Vermont. But extensive use of equitable sharing pulls down the final grades of five of those states: Indiana (C+), Maryland (C+), Missouri (C+), North Carolina (C+) and Ohio (C-).
The lowest-graded states overall, combining both poor laws and aggressive use of equitable sharing, are Georgia, Michigan, Texas, Virginia and West Virginia.
Public accountability over civil asset forfeiture in the states is extremely limited. Only 29 states clearly require law enforcement to collect and report forfeiture data, and just 19 of those states responded to freedom-of-information requests with usable data—and the data provided were often meager. In most states, we know nothing or next-to-nothing about the use of civil forfeiture or its proceeds.
Based on these findings, Bullock offers in a foreword to this study several recommendations for reform to better protect property rights. Short of abolishing civil forfeiture, he advocates eliminating the profit motive, leveling the playing field for property owners, providing more public accountability and closing the equitable sharing loophole.
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