Part II: Grading the States

Policing for Profit

How to Use Grading the States

This section provides detailed information about asset forfeiture in each state, as well as for the federal government.  For each state, we include a brief explanation of the state’s forfeiture law, data on the extent of forfeiture use, and a grade.

Forfeiture Law:  This provides a brief description of the forfeiture laws in each state, focusing especially on incentives for abuse:  the percentage of forfeiture proceeds law enforcement agencies may keep and how easy or difficult the law makes it for owners to keep or successfully fight for the return of their property.  Our analysis focuses primarily on the civil forfeiture laws and procedures in drug statutes.

Extent of Forfeiture Use:  The tables indicate the level of asset forfeiture use in each state using the three sources of data detailed on pages 27 and 29.  While all fall short of a complete count of assets forfeited, together they provide a more comprehensive picture of the extent of forfeiture use in a state.  Also, recall that none of these sources distinguish between civil and criminal forfeitures, though it is likely that the vast majority are civil forfeitures.  Finally, note that data from LEMAS and freedom-of-information requests may include equitable sharing proceeds, as well as proceeds from state-law forfeitures.

Grade:  Each state is graded on the extent to which its asset forfeiture law encourages policing for profit, as well as data indicating how law enforcement officers behave in response to the incentives in the law.  Final grades combine two separate grades, one for the incentives in the law and the other for behavior.

Forfeiture Law Grade:  This grade indicates how rewarding and easy civil forfeiture is in a state.  The table below indicates how we assigned grades to each state for three elements of forfeiture law.  These individual grades were weighted to reflect the relative incentive each element provides law enforcement to engage in civil forfeiture.  Weighted grades were then combined into one grade.[1]

State Law Evasion Grade:  As the findings of the first section demonstrate, a state law that provides strong protections for property owners is of little use if law enforcement agencies can partner with the federal government to forfeit property and receive a large chunk of the proceeds.  Therefore, a critical part of grading the states is the use of equitable sharing as a measure of the extent to which state and local law enforcement agencies attempt to circumvent limits in state law.[2]   Higher grades indicate lower levels of equitable sharing.[3]

Final Grade:  This is a simple average of the Forfeiture Law Grade and the State Law Evasion Grade.

[1] After states were assigned their respective grades, the standard of proof and innocent owner burden grades were combined into one “burden” grade by creating a weighted average, where standard of proof accounted for 66 percent of the grade and innocent owner burden accounted for 33 percent.  This reflects the relative difficulty each process represents for law enforcement agencies in keeping seized properties.  These burden grades were then combined with profit motive grades into a single weighted grade by assigning a weight of one to the “burden” grades and a weight of three to the percentage grades.  This was done based on the premise that law enforcement agencies are incentivized to pursue asset forfeiture based more on the percentage of the seized assets they can keep than the relative ease of the forfeiture process.

[2] A few states require that equitable sharing assets must go through a state or local court prior to deposit in a federal account.  These are commonly called “turnover orders.”

[3] This grade was created in a multi-step process.  First, a three-year average of equitable sharing was created using data from 2005, 2006 and 2007.  Second, the equitable sharing totals for each state were adjusted, or standardized, by dividing each state’s equitable sharing total by its average rate of drug arrests for 2005, 2006 and 2007, taken from the FBI’s Uniform Crime Report.  (Drug arrest rate reflects the number of drug arrests per 1,000 people in the population).  Third, because the adjusted equitable sharing distribution was skewed, the data were transformed into natural logs to normalize the distribution.  Fourth, the logged data were transformed into z-scores and grades assigned where z-scores of less than -1.5=A, -1.5 to -.5=B; -.5 to .5=C; .5 to 1.5=D; and greater than 1.5=F.