Given the recent efforts at the state and federal level to rein in asset forfeiture abuses, you might think that the practice is in decline. You’d be mistaken. The Institute for Justice, a libertarian public-interest law firm, has just released its latest report on the practice. From the summary:
Under civil forfeiture laws, police and prosecutors can seize cash, cars, homes and other property on the mere suspicion that it is connected to criminal activity. No charges or convictions are required. And once property is seized, owners must navigate a confusing, complex and often expensive legal process to try to win it back before it is forfeited. Worst of all, most civil forfeiture laws give law enforcement agencies a powerful incentive to take property: a cut, or even all, of forfeiture proceeds. Such financial incentives, combined with weak protections for property owners, increasingly put people’s property at risk.
Nationwide, forfeiture revenue has exploded. Since 2001, annual federal forfeiture revenue has increased from less than $500 million to more than $5 billion in 2014—a tenfold increase in just 14 years. And available data show forfeiture revenue across 14 states more than doubling from 2002 to 2013.
The study also finds that when police and prosecutors take property, they overwhelmingly prefer civil forfeiture to its criminal counterpart. Civil forfeiture is easier for law enforcement because it does not require a conviction, while criminal forfeiture does. Data obtained by IJ reveal that the Department of Justice took advantage of easier civil procedures in 87 percent of forfeiture cases from 1997 to 2013.
Even in states that have passed reforms, the Justice Department’s equitable-sharing program allows police and prosecutors to get around those restrictions so that their forfeitures are controlled by the more law enforcement-friendly federal standards.
State and local law enforcement can also take advantage of a controversial federal forfeiture program called equitable sharing, which enables them to circumvent their own states’ laws, which are often less lucrative, and forfeit under federal law instead—getting up to 80 percent of the proceeds back. Policing for Profit finds that DOJ equitable sharing payments to state and local law enforcement nationwide more than tripled between 2000 and 2013, jumping from $198 million to $643 million.
This year, former attorney general Eric Holder announced some new restrictions on the equitable-sharing program, but as I wrote here in January, those restrictions will affect only a very small percentage of overall forfeitures.
Defenders of these policies often claim that they’re necessary to prevent “ill-gotten gains” from big-time drug dealers and other criminals. But IJ was able to obtain figures on the amount of money or value of assets forfeited per suspect from 10 different states. The median amount ranged from $451 in Minnesota to $2,048 in Utah. These aren’t kingpins. In fact, even the upper end of that range is far below what it would cost an innocent owner to hire an attorney to win back what was taken.
IJ also gave each state an updated grade based on its forfeiture policies and practices. Here’s a map of those grades: