President and General Counsel
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.
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.
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:
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:
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.
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.
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.