text: The Abuse of Civil Asset Forfeiture by Marian R. Williams, Ph.D. Jefferson E. Holcomb, Ph.D. Tomislav V. Kovandzic, Ph.D. Scott Bullock March 2010 The Abuse of Civil Asset Forfeiture by Marian R. Williams, Ph.D. Jefferson E. Holcomb, Ph.D. Tomislav V. Kovandzic, Ph.D. Scott Bullock March 2010 Table of Contents Executive Summary 6 Foreword by Scott Bullock 9 Part I: Policing for Profit 15 What is Civil Asset Forfeiture? 15 Incentives for Abuse of Civil Asset Forfeiture 15 Profit Motive 17 An Unlevel Playing Field for Property Owners 20 Part I: Policing for Profit Standard of Proof 20 Burden on Innocent Owners 23 Federal Equitable Sharing 23 Extent and Nature of Asset Forfeiture in the United States 27 Data Sources 27 Findings 29 Is Law Enforcement Policing for Profit? 35 Analysis 37 Results 37 Part II: Grading the States 41 How to Use "Grading the States" 41 State Grades 43 Part II Alabama 46 Alaska 47 Arizona 48 Arkansas 49 California 50 Colorado 51 Connecticut 52 Delaware 53 Florida 54 Georgia 55 Hawaii 56 Idaho 57 Illinois 58 Part II: Grading the States Indiana 59 Iowa 60 Kansas 61 Kentucky 62 Louisiana 63 Maine 64 Maryland 65 Massachusetts 66 Michigan 67 Minnesota 69 Mississippi 71 Missouri 72 Montana 73 Nebraska 74 Nevada 75 New Hampshire 76 New Jersey 77 New Mexico 78 New York 79 North Carolina 80 North Dakota 81 Ohio 82 Oklahoma 83 Part II: Grading the States Oregon 85 Pennsylvania 86 Rhode Island 88 South Carolina 89 South Dakota 90 Tennessee 91 Texas 92 Utah 94 Vermont 95 Virginia 96 Washington 98 West Virginia 100 Wisconsin 101 Wyoming 102 Stories of Civil Forfeiture Abuse Shakedown in Tenaha, Texas 16 Stories of Civil Forfeiture Abuse Extravagance with Forfeiture Funds in Camden County, Ga. 19 Data Reveals Texas Law Enforcement's Dependence on Forfeiture Funds 21 Canine Sniffs Yield Unreliable Evidence for Forfeiture 24 Despite State Protections, Nebraska Troopers Seize Cash 28 Forfeiture as Extortion in Jim Wells County, Texas 33 In Lamar County, Ga., "They had guns and badges and they just took it." 36 Seizing Elderly Woman's Home in Philadelphia 38 Appendix A: Methods 105 Appendix B: Detailed Statistical Results 108 Endnotes 113 Executive Summary Executive Summary 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 Finally, federal civil forfeiture laws encour- age abuse by providing a loophole to law enforce- In most states and under federal law, law ment in states with good laws for property owners: enforcement can keep some or all of the proceeds "equitable sharing." With equitable sharing, state from civil forfeitures. This incentive has led to law enforcement can turn over seized assets to the concern that civil forfeiture encourages policing for federal government, or they may seize them jointly profit, as agencies pursue forfeitures to boost their with federal officers. The property is then subject budgets at the expense of other policing priorities. to federal civil forfeiture law—not state law. Federal These concerns are exacerbated by legal law provides as much as 80 percent of the proceeds procedures that make civil forfeiture relatively easy to state law enforcement and stacks the deck against for the government and hard for property owners property owners. Thus, the equitable sharing loop- to fight. For example, once law enforcement seizes hole provides a way for state and local law enforce- property, the government must prove it was involved ment to profit from forfeitures that they may not be in criminal activity to forfeit or permanently keep it. able to under state law. But in nearly all states and at the federal level, the legal standard of proof the government must meet Extent of Forfeiture Use for civil forfeiture is lower than the strict standard of "beyond a reasonable doubt" required for criminal In Part I of this study, criminal justice research- convictions. ers Marian R. Williams and Jefferson E. Holcomb Likewise, many jurisdictions provide an "inno- of Appalachian State University and Tomislav V. cent-owner" defense that allows owners to get their Kovandzic of the University of Texas at Dallas find property back if they had no idea it was involved in the use of asset forfeiture is extensive at all levels of a crime. However, in most places, owners bear the government and growing: burden of establishing their innocence. In other In 2008, for the first time in history, the words, with civil forfeiture, property owners are ef- • U.S. Department of Justice's Assets Forfei- fectively guilty until proven innocent. ture Fund (AFF) held more Unlike criminal asset forfeiture, with than $1 billion in net assets— that is, money forfeited from civil forfeiture, a property owner need property owners and now not be found guilty of a crime—or even available for federal law enforcement activities after charged—to permanently lose her cash, deducting various expenses. A similar fund at the U.S. 6 car, home or other property. Treasury Department held more than $400 million in net assets in increase of $30,000 per year for an 2008. By contrast, in 1986, the year average-sized law enforcement agency, after the AFF was created, it took in representing an increase of 25 percent just $93.7 million in deposits. of equitable sharing dollars. • State data reveal that state and local • Innocent Owner Burden: Presuming law enforcement also use forfeiture owners are innocent instead of guilty, extensively: From 2001 to 2002, thus better protecting owners and currency forfeitures alone in just nine making civil forfeiture harder for law states totaled more than $70 When laws make civil forfeiture easier million. This measure excludes and more profitable, law enforcement cars and other engages in more of it. forfeited prop- erty, as well as forfeitures from many enforcement, leads to an increase in states that did not make data available equitable sharing of $27,600 per year for those years, and so likely represents for an average-sized law enforcement just the tip of the forfeiture iceberg. agency, growth of about 23 percent. • Equitable sharing payments to states • Standard of Proof: In states where have nearly doubled from 2000 to owners are presumed innocent, raising 2008, from a little more than $200 by one level the standard of proof million to $400 million. the government must meet to forfeit property leads to an increase in equi- Policing for Profit table sharing payments of $16,860 per year for an average-sized agency, an Civil forfeiture encourages policing for increase of about 14 percent. profit according to an analysis of national data by Williams, Holcomb and Kovandzic. These results demonstrate not only that Specifically, they find that when state laws make federal equitable sharing is a loophole that state forfeiture more difficult and less rewarding, and local law enforcement use to circumvent law enforcement instead takes advantage of strict state laws but also that pursuit of profit is easier and more generous federal forfeiture laws a significant motivator in civil forfeiture actions. through equitable sharing. Simply put, when laws make civil forfeiture The researchers tested three elements of easier and more profitable, law enforcement state law and found that all three, either inde- engages in more of it. pendently or in combination, affect equitable sharing proceeds. As state laws improve for Grading Forfeiture Laws and Behavior property owners, use of the equitable sharing loophole rises: In Part II, Institute for Justice attorney Scott Bullock details the civil forfeiture laws and • Profit Motive: Law enforcement data for each state and the federal government. agencies in states with no profit motive He also grades the states based on the same (no forfeiture proceeds to law enforce- three elements of state law Williams, Holcomb ment) will receive more in equitable and Kovandzic test, as well how much state and sharing than agencies in states with local law enforcement use the equitable sharing a 100-percent profit motive—an loophole. 7 Bullock finds: report forfeiture data, and just 19 of • Only three states—Maine, North those states responded to freedom- Dakota and Vermont—receive a com- of-information requests with usable bined grade of B or higher. The other data—and the data provided were 47 states all receive Cs or Ds. often meager. In most states, we know nothing or next-to-nothing about the • Most state civil forfeiture laws provide use of civil forfeiture or its proceeds. little protection to property owners. Six In most states, we know nothing or states receive an F and 29 states receive next-to-nothing about the use of civil a D for their laws forfeiture or its proceeds. alone. Lax federal laws earn the federal government a Based on these findings, Bullock offers in a law grade of D-. foreword to this study several recommendations for reform to better protect property rights. • Eight states receive a B or higher for Short of abolishing civil forfeiture, he advocates their laws: Indiana, Maine, Maryland, eliminating the profit motive, leveling the play- Missouri, North Carolina, North ing field for property owners, providing more Dakota, Ohio and Vermont. But ex- public accountability and closing the equitable tensive use of equitable sharing pulls sharing loophole. 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, com- bining 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 8 Foreword By Scott Bullock Foreword Imagine being pulled over and a law enforcement officer decides to take your car, cash or other personal property. The officer claims that he has probable cause to believe not necessarily that you are guilty of any illegal conduct but that your property was used to facilitate illegal activity. Perhaps the officer thinks you are carrying a larger-than-normal amount of cash or that your travel pattern is "suspicious." Once your property is taken, the government ment agencies are usually entitled to keep at least will—perhaps—send you a notice letting you know some of the money and property confiscated from that the burden is on you to try to get your property individuals, thus giving them a direct financial stake back. If you do not respond within the right time in the outcome of forfeiture efforts. Such statutory frame and in the proper manner, law enforcement schemes pervert law enforcement's responsibility to automatically gets to keep your seized property. enforce the law fairly and spell disaster for property But even if you do try to win back your property in owners caught up in forfeiture proceedings. court, you will have to wait several months, if not And this is not just theory. In Part I of this more than a year, to get a hearing. At that hear- report, criminal justice researchers Marian R. Wil- ing, you will find yourself in a legal maze where the liams and Jefferson E. Holcomb of Appalachian government holds most of the advantages, and you State University and Tomislav V. Kovandzic of the carry most of the burdens. University of Texas at Dallas provide the most thor- Welcome to the down-is-up and white-is-black ough national analysis yet of whether law enforce- world of civil forfeiture. ment agencies respond to incentives by increasing Civil forfeiture laws represent one of the most the use of forfeiture when they can keep a higher serious assaults on private property rights in the percentage of forfeiture revenue for their own use nation today. Civil forfeiture is the power of law and do so more easily. Unfortunately for property enforcement to seize and keep property suspected of owners across the country, the analysis finds that involvement in criminal activity. Under this power, they do just that. it is not necessary for the government to demon- strate that a property owner is guilty of criminal How Did We Get Here? misconduct. Indeed, civil forfeiture can take place A Brief History of Civil Forfeiture even when criminal charges are never filed against a property owner. Under laws at both the federal and state levels, But perhaps the most troubling aspect of governments can forfeit property either criminally modern civil forfeiture laws is the profit incentive at or civilly. Criminal forfeiture is tied to the criminal their core. The overriding goal for law enforcement conviction of an individual, where the government officials—both prosecutors and police—should be needs to show that an offender is guilty beyond a fair and impartial administration of justice. Howev- reasonable doubt and the accused is afforded all er, civil forfeiture laws at the federal level and in 42 the rights under the Constitution. In other words, states dangerously shift law enforcement priorities with criminal forfeiture, the government must actu- instead toward the pursuit of property and profit. ally demonstrate in court that the property owner How? As this study demonstrates, the gov- obtained his property illegally. ernment often holds most of the advantages in But civil forfeiture is a legal fiction that enables prosecuting civil forfeitures cases, and law enforce- law enforcement to take legal action against inani- 9 mate objects for participation in alleged criminal statutes. The forfeiture power was upheld in early activity, regardless of whether the property owner Supreme Court cases.6 is guilty or innocent—or even whether the owner The most important aspect of these early forfei- is charged with a crime. Civil forfeiture actions are ture cases, however, is the very limited justification in rem proceedings, which means literally "against a provided for the application of civil forfeiture even thing"—the property itself is charged with a crime. to innocent property owners. The Supreme Court That is why civil forfeiture proceedings have bizarre held that civil forfeiture was closely tied to the prac- tical necessities of enforcing The most troubling aspect of admiralty, piracy and customs laws. In rem forfeiture permit- modern civil forfeiture laws is ted courts to obtain jurisdic- tion over property when it was the profit incentive at their core. virtually impossible to seek justice against property owners guilty of violating maritime titles, such as United States v. $10,500 in U.S. Currency law because, for example, they were overseas. or People v. Certain Real and Personal Property. And be- Therefore, with civil forfeiture, the government cause they are civil proceedings, most of the consti- could ensure that customs and other laws were tutional protections afforded criminal defendants do enforced even if the owner of the ship or the cargo not apply to property owners in civil forfeiture cases. was outside the court's jurisdiction. Justice Story Of course, objects such as cash, property, cars wrote that the "vessel which commits the aggression or boats sued for participation in criminal activity is treated as the offender, as the guilty instrument or do not act or think. The doctrine of in rem forfeiture thing to which the forfeiture attaches, without any arose from Medieval ideas, rooted in the ancient reference whatsoever to the character or conduct of law of "deodand."1 Kings, for instance, could seize the owner."7 However, Story justified such forfei- an instrument that caused the death of another in tures "from the necessity of the case, as the only ad- order to finance the deceased's funeral mass.2 The equate means of suppressing the offence or wrong, idea arose from a superstitious belief that objects or insuring an indemnity to the injured party."8 acted independently to cause death.3 Although the Supreme Court had permitted While the concept of deodand gives rise to the the government to expand the forfeiture power "guilty property" legal fiction, American forfeiture during the Civil War, throughout most of the 20th law did not arise strictly from this concept but rather century, civil forfeiture remained a relative backwa- from the British Navigation Acts of the mid-17th ter in American law with one exception: It was used century.4 The Acts were passed during England's extensively during Prohibition against automobiles vast expansion as a maritime power. The Acts and other vehicles transporting illegal liquor. required imports and exports from England to be Modern civil forfeiture use then exploded carried on British ships. If the Acts were violated, during the early 1980s as government at all levels the ships or the cargo on board could be seized and stepped up the war on drugs, and Congress and forfeited to the crown regardless of the guilt or inno- the states created new incentives for the use and cence of the owner. arguably the abuse of civil forfeiture. For most of Using the British statutes as a model, the first American history, the proceeds from forfeitures went U.S. Congress passed forfeiture statutes to aid in the not to the law enforcement agencies responsible for collection of customs duties, which provided 80 to the seizures but to the government's general fund. 90 percent of the finances for the federal govern- However, in 1984, Congress amended portions of ment during that time.5 Civil forfeiture was intro- the Comprehensive Drug Abuse and Prevention Act duced in American law through these early customs of 1970 to create the Assets Forfeiture Fund, into 10 which the Attorney General was to deposit all and the states have expanded its application net forfeiture proceeds for use by the Depart- even beyond alleged drug violations to include ment of Justice and other federal law enforce- a plethora of crimes at the federal and state ment agencies. 9 levels. Today, there are more than 400 fed- Subsequent amendments dramatically eral forfeiture statutes relating to a number expanded what law enforcement could do of federal crimes, and all states have statutory with these funds, including allowing their use provisions for some form of asset forfeiture. for expenses such as purchasing vehicles and overtime pay.10 In short, after the 1984 amend- Forfeiture Use Explodes ments, federal agencies were able to retain and spend forfeiture proceeds—subject only to very One consequence of the changes in loose restrictions—giving them a direct finan- forfeiture laws is the dramatic increase of forfei- cial stake in generating forfeiture funds. With ture activity that took place in their wake. As these changes, the modern era of policing and discussed in Part I, in 1986, the second year prosecuting for profit had begun. after the creation of the Department of Justice Meanwhile, many states followed the Assets Forfeiture Fund, the Fund took in $93.7 federal government's profit-making example by million in proceeds from forfeited assets. By amending their civil forfeiture laws to give law 2008, the Fund for the first time in history enforcement agencies a direct share of forfeited topped $1 billion in net assets, i.e., forfeiture proceeds. Law enforcement agencies in 42 proceeds free-and-clear of debt obligations states receive some or all of the civil forfeiture and now available for use by law enforcement. proceeds they seize. Data on civil forfeitures under state law are In 2000, Congress passed the Civil Asset shockingly sparse, but the researchers point to Forfeiture Reform Act (CAFRA), amending evidence indicating that use of state forfeiture is various provisions of federal forfeiture law.11 extensive and growing. CAFRA offered a number of modest reforms, Such growth in the amount of forfeiture is but it did not change how forfeiture proceeds the result of governmental officials responding are distributed or otherwise ameliorate the to incentives. All people work to better their profit incentive law enforcement agencies have position. Just as private citizens are motivated in civil forfeiture.12 by self-interest, so too does it motivate govern- No longer is civil forfeiture tied to the ment officials.13 While many individuals within practical difficulties of obtaining personal a government organization may share a prin- jurisdiction over an individual. Released from cipled commitment to carrying out the mission its historical limitation as a necessary means of of the agency, government officials, operating enforcing admiralty and customs laws, the for- in what they perceive as their own self-interest, feiture power has instead become a After the 1984 amendments, federal commonly agencies were able to retain and spend used weapon in the gov- forfeiture proceeds—subject only to very ernment's crime-fight- loose restrictions—giving them a direct ing arse- financial stake in generating forfeiture funds. nal. And Congress 11 will also attempt to maximize the size and bud- ment agencies to circumvent unfavorable state get of their agency. Larger budgets will benefit forfeiture procedures. As Williams, Holcomb everyone within an agency through higher and Kovandzic conclude, when state law salaries, greater job security, better equipment makes forfeiture more difficult and limits how and increased power and prestige. Such incen- much forfeiture revenue law enforcement may tives can affect even the most well-intentioned keep, state and local law enforcement officials law enforcement officers. will participate more in equitable sharing with The difference between self-interest in the the federal government. Thus, state and local public and private spheres is that the private law enforcement officials defy the will of their citizen must persuade to achieve his ends, while citizens in order to profit along with their fed- the government official can employ force. It is eral counterparts. therefore a constant threat that those in posi- tions of power will use that force to serve their Dependence on Forfeiture Funds own self-interest at the expense of the broader populace. This concern reaches its zenith It should also not be surprising that, given when government officials stand to aggrandize the structures and incentives of civil forfeiture themselves by seizing individuals' private prop- law, a substantial number of law enforcement erty for their own benefit. agencies are now dependent on civil forfeiture proceeds and view civil forfeiture as a neces- sary source of So-called "equitable sharing" thus provides income. Wil- liams, Holcomb a way for state and local law enforcement and Kovandzic agencies to circumvent unfavorable state point to a800 law of nearly survey forfeiture procedures. enforcement ex- ecutives, in which nearly 40 percent of police agencies reported that civil forfei- Evading State Law ture proceeds were a necessary budget supple- Even in those states where the profit incen- ment. And they note that this dependency tive is prohibited or limited, law enforcement is also present at the federal level, where the officials circumvent state law and work with Department of Justice in the past has urged its federal agents to "share" in forfeiture proceeds. lawyers to increase their civil forfeiture efforts The 1984 amendments allow state and local so as to meet the Department's annual budget law enforcement agencies to transfer assets targets. they seize to federal law enforcement agen- The Institute for Justice collected data cies. Federal law enforcement officials can take on forfeiture proceeds and budget data from possession of this property and initiate federal a random sample of 52 law enforcement forfeiture actions as long as the "conduct giving agencies in Texas. We found that forfeiture rise to the seizure is in violation of federal law proceeds represent an average of more than and where federal law provides for forfei- 14 percent of law enforcement budgets—a ture." When property is forfeited under these sizable share of an agency's budget. Indeed, arrangements, agencies at the federal, state we found that many law enforcement agencies and local levels all share in the bounty—with were counting on this revenue by including it state and local officials receiving as much as 80 in their budget estimates. percent back. One consequence of giving law enforce- This so-called "equitable sharing" thus ment a pecuniary interest in forfeiture pro- provides a way for state and local law enforce- ceeds is that it can cause them to over-enforce 12 crimes that carry the possibility of Eighty percent of persons whose prop- forfeiture to the erty was seized by the federal govern- neglect of other law enforcement ment for forfeiture were never even objectives. This makes basic charged with a crime. economic sense; as the return to enforcing certain crimes In reality, few property owners, especially increases, one would expect law enforcement low-income individuals, can meet the burdens agencies to devote a higher percentage of their of civil forfeiture proceedings and often do not resources to those aims.14 And, again, this is challenge seizures of their property. This is es- not simply theory. Earlier research found that pecially true when government seizes property in states where agencies get to keep the lion's the value of which would be greatly exceeded share of forfeiture proceeds, drug arrests— by the time, attorney fees and other expenses which often have the potential of a related civil necessary to fight the forfeiture. As a result, forfeiture—constitute a significantly higher many property owners do not and cannot chal- percentage of all arrests.15 lenge forfeitures, and the government obtains the property by default. Stacking the Deck Against Property Owners Limited Public Oversight and Accountability One of the reasons why law enforcement prefers civil forfeiture to criminal forfeiture is Incredibly, given the ability of law enforce- because the procedure stacks the deck against ment through civil forfeiture to raise off-budget property owners. As detailed in this report, in funds, often without limitation, many states civil proceedings, for instance, the government do not even require law enforcement agencies usually only needs to prove the property's con- to report how much money has been raised nection to alleged criminal activity by a mere and on what items the money has been spent. "preponderance of evidence" standard—or As of 2003, only 29 states required this basic sometimes under an even lower standard— level of public oversight—and only 19 of those not proof "beyond a reasonable doubt" as in states responded to freedom of information criminal cases. requests with reliable information. And those Because it is the property itself that is the states that did respond often provided very target of the lawsuit, the owner of the property limited data. need not be convicted of or even charged with any criminal activity for the government to for- Recommendations for Reform feit the property. Indeed, one study found that approximately 80 percent of persons whose In Part II of this report, I summarize the property was seized by the federal government civil forfeiture laws of all 50 states and the for forfeiture were never even charged with a federal government and provide all available crime.16 data for each state. I also grade each state on Moreover, in most states, if property is its forfeiture laws and behavior using objective used illegally without the owner's knowledge or criteria that measure how easy and profitable consent, the burden is placed on the property state law makes forfeiture and how often state owner to establish her innocence in court, not and local law enforcement appear to evade the government to prove otherwise. In other state law through equitable sharing. The words, a property owner is guilty until proven results are not encouraging: Only three states innocent. earned a B or higher. 13 Given the undermining of property rights • Require all agencies to track and that civil forfeiture law inevitably entails, the report civil forfeiture revenue and dis- abuses that have been documented in this tributions and make that information report and elsewhere, and the research findings readily available to the public. set forth here, what should be done? Here are some key recommendations: • Respect federalism principles by Ideally, civil forfeiture should be abolished, abolishing equitable sharing arrange- at least outside of its narrow historical use in ments with the federal government. If enforcing admiralty and customs laws. Govern- a state has decided to end the practice ments should have to tie forfeiture to criminal of policing for profit, officials in that convictions of specific individuals. state should not be allowed to do an end-run around those procedures by Short of abolishing civil forfeiture entirely, teaming up with the federal govern- governments at the very least should: ment to forfeit property. • End the direct profit incentive under Conclusion civil forfeiture laws. Civil forfeiture revenue should be placed into a neu- Private property is one of this nation's tral fund, such as one for education or most cherished principles, but it is a principle drug treatment, or, most desirably, in under assault by modern civil forfeiture law. the general revenue fund of the county The changes to civil forfeiture that gave law or state government. enforcement agencies a percentage of forfei- ture proceeds while also giving them the upper • Impose a high standard of proof on hand in forfeiture proceedings have created a law enforcement in civil forfeiture powerful incentive: seize, forfeit and profit. But proceedings, requiring that it prove this pecuniary interest and the other advantages its forfeiture case at least by clear and granted the government under civil forfeiture convincing evidence. laws have distorted law enforcement priorities, altered officer and prosecutor behavior and led • Provide a meaningful defense for inno- to a number of police and prosecutorial abuses. cent owners by removing the burden This study will hopefully lead the way toward on property owners to prove their curbing these abuses and protecting one of our innocence and instead placing the most important rights. burden of proof on the government. 14 Part I: Policing for Profit What is Civil Asset Forfeiture? Part I In everyday language, if something is "forfeited," it means that an owner voluntarily relinquishes the property. In legal forfeiture actions, however, "forfeited" property has been taken by the government without compensation, not voluntarily given up.17 Federal and most state laws allow both property forfeited—permanently taken from its civil and criminal asset forfeitures. In civil asset owner—without judicial involvement. Prosecu- forfeiture, action is taken against a person's tors or district attorneys may also initiate for- property or assets, not against an individual. feiture proceedings in court. A judge will then A person's property is the target of the legal determine if the assets are to be forfeited; if proceeding, and the owner is secondary. The forfeited, ownership of the assets is transferred owner does not have to be arrested or convicted to the government. of a crime to have his property taken. By con- As this report details, state and federal law trast, criminal forfeitures occur against a person then dictates what can be done with the prop- after conviction for an underlying criminal erty or, if sold, its proceeds. Federal law and offense. laws in most states allow 50 percent or more of Critics charge that law enforcement officers the property or proceeds to go to law enforce- prefer civil forfeiture because it affords prop- ment agencies. This includes cash, cars, cell erty owners fewer protections than criminal phones and homes that can be kept for official proceedings, thus making it easier to seize use. Some states dictate that forfeiture proceeds assets, and indeed, one prominent prosecutor or a percentage of them fund drug education has admitted that criminal forfeiture is "a much and rehabilitation programs or the general fund more limited tool of law enforcement than is of the city, county or state.19 civil forfeiture."18 In the forfeiture context, a "seizure" is Incentives for Abuse when an officer of the law takes possession of of Civil Asset Forfeiture an individual's property. This is typically the first step in the asset forfeiture process. For the Supporters of civil asset forfeiture, includ- police to seize an individual's property, most ing law enforcement officers and prosecutors, jurisdictions require that the officer merely argue that it is an essential tool for fighting have "probable cause" to believe the property is crime, both by reducing the profitability of subject to forfeiture. The laws in some jurisdic- crimes and by removing the assets required for tions, however, have additional requirements certain criminal activity.20 Forfeiture is espe- before real property, such as a home, can be cially important, proponents claim, for reducing seized. the rewards of financially motivated crimes What happens after a seizure depends on such as drug trafficking and sales, gambling and the jurisdiction, the type of property seized and vice, and organized crime.21 the type of forfeiture that is being sought. In Proponents also argue that asset forfeiture some cases, the police may simply declare a protects the public's interest and promotes the 15 Shakedown in Tenaha, Texas In October 2007, law enforcement officials in Tenaha, Texas, pulled Roderick Daniels over for allegedly traveling 37 mph in a 35 mph zone. Upon discovering $8,500 in cash that the Tennessee man had planned to use to buy a new car, the officers took Daniels to jail and threatened to charge him with money-laundering unless he turned over the cash. Daniels surrendered his property. "To be honest, I was five, six hundred miles from home. I was petrified," he said.1 Daniels' experience was far from unusual in Tenaha. Between 2006 and 2008, local officials stopped more than 140, mostly black, out-of-state drivers, including a grandmother from Akron, a black family from Maryland and an interracial family from Houston. Once arrested, officers took them to jail and threatened to file charges unless they signed pre-notarized statements relinquish- ing any claim to their valuables. Officers seized cash, cars, cell phones, jewelry and even sneak- ers. In most cases, criminal charges were never filed and there was no evidence to conclude the motorists were engaged in illicit activity.2 A federal lawsuit filed in July 2008 accuses authorities of targeting minorities driving rental cars or vehicles with out-of-state plates. "My take on the matter is that the police in Tenaha, Texas, were picking on and preying on people that were least likely to fight back," said David Guillory, who represents eight plaintiffs.3 Although law enforcement alleges that the stretch of road on which the stops are made is a major drug corridor between Shreveport, La., and Houston, Texas, none of the plaintiffs has been arrested for, much less convicted of, violating drug laws. Jennifer Boatright and her husband Ronald Henderson relinquished more than $6,000 after police and the Shelby County District Attorney threatened to charge them with money-laundering and put their two children in foster care. "I said, 'If it's the money you want, you can take it, if that's what it takes to keep my children with me and not separate them from us. Take the money,'" said Boatright.4 Maryland resident Amanee Busbee was traveling to Houston with her son, fiancé and busi- ness partner to complete the purchase of a restaurant. "The police officer would say things to me like, 'Your son is going to child protective services because you are not saying what we need to hear,'" said Busbee.5 Guillory says of the 40 motorists he contacted, 39 were black. He estimates officials seized $3 million between 2006 and 2008 from improper seizures. Public records requests revealed that the District Attorney used some of the money to buy a $524 popcorn machine, $195 for candy and $400 for catering. Seized funds also went to the local Chamber of Commerce, a youth baseball league and a local church. Officials have denied any wrongdoing but have returned Roderick Daniels's possessions as well as Boatright and Henderson's.6 The civil rights lawsuit is currently in discovery. 1 Tuchman, G., & Wojtecki, K. (2009, May 5). Texas police shake down drivers, lawsuit claims. CNN.com. Retrieved September 16, 2009, from http://www.cnn.com/2009/CRIME/05/05/texas.police.seizures/. 2 Witt, H. (2009, March 10). Highway robbery in Texas?; Lawsuit says motorists, disproportionately black, are forced by police to forfeit cash, cars and more–or be charged with trumped-up crimes. Chicago Tribune, p. C4; Sandberg, L. (2009, February 7). Property seizures seen as piracy. San Antonio Express-News, p.1A. 3 2nd Amended Complaint at 1, Morrow v. City of Tenaha No. 2:08cv288 (E.D. Tx. filed Jun. 30, 2009). Tuchman and 16 Wojtecki, 2009. 4 Morrow v. City of Tenaha No. 2:08cv288 at 9; Tuchman and Wojtecki, 2009. 5 Tuchman and Wojtecki, 2009. 6 Witt, 2009; Tuchman and Wojtecki, 2009. social good by compensating individual victims, bar the use of state forfeiture proceeds by law funding victim compensation funds, and, where enforcement. In the other 42 states, at least allowed by law, funding schools, drug treatment 50 percent goes to law enforcement, and in 26 and drug education programs.22 Finally, pro- states, it is 100 percent.27 This provides oppor- ponents argue that civil asset forfeiture makes tunities for self-generating substantial agency additional funds available for important law resources. enforcement activities.23 Criminologists, economists and legal schol- However, critics charge that the lure of ars who have studied forfeiture behavior have potential financial rewards affects law enforce- found evidence indicating that police depart- ment activities and priorities. The combination ments are taking advantage of lenient forfeiture of tremendous financial incentives and limited statutes to "pad their budgets."28 Financial protections for property owners creates a situa- incentives may be particularly powerful for tion ripe for abuse. state and local law enforcement agencies that have limited resources and are susceptible to Profit Motive changes in budget allocations.29 According to a 2008 investigative series on National Public Law enforcement agencies face tremen- Radio, some Texas sheriffs' departments rely dous financial incentives to "police for profit."24 on forfeited money for up to one-third of their Table 125 shows the percentage of forfeiture budgets.30 proceeds that may be used for law enforcement Given the considerable sums of money purposes in all 50 states.26 Only eight states that some departments receive and the limited Table 1 Proceeds Distributed to Law Enforcement 0% Indiana, Maine, Maryland, Missouri, North Carolina, North Dakota, Ohio, Vermont 50% Colorado, Wisconsin 60% Connecticut, New York 63% Oregon 65% California 75% Nebraska 80% Louisiana, Mississippi 85% Florida 90% Illinois, Minnesota, New Hampshire, Rhode Island, Texas 95% South Carolina Alaska, Alabama, Arkansas, Arizona, Delaware, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, 100% Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wyoming 17 expenditure oversight in many jurisdictions, it is the $470 million projection would expose the not surprising that investigations have revealed Department's forfeiture program to criticism some highly questionable expenditures of for- and undermine confidence in our budget feiture proceeds: predictions. Every effort must be made to in- crease forfeiture income in the three remaining • in Camden County, Ga., a $90,000 months of fiscal year 1990."34 Dodge Viper for the county's DARE pro- More recently, AssetRecoveryWatch.com, gram; a forfeiture training and advocacy organiza- • in Colorado, bomber jackets for the tion, cited a senior U.S. Justice Department Colorado State Patrol; official who, speaking at a conference in July • in Austin, Texas, running gear for the 2009, "urged prosecutors and law enforcement police department; officials to seize and forfeit more ill-gotten • in Fulton County, Ga., football tickets for gains."35 AssetRecoveryWatch.com (marketing the district attorney's office, slogan: "Is that house (or car, or boat) worth • in Webb County, Texas, $20,000 for TV seizing? Our experts help you decide") is part commercials for the district attorney's re- of a cottage industry of for-profit and non- election campaign; profit organizations that has developed to assist • in Kimble County, Texas, $14,000 for a government officials in seizing and forfeiting "training seminar" in Hawaii for the staff of assets.36 the district attorney's office; Criminologist John Worrall surveyed 770 • in Albany, N.Y., over $16,000 for food, police managers and executives and found that gifts and entertainment for the police de- almost 40 percent of respondents agreed or partment.31 strongly agreed with the statement that civil forfeiture is "necessary as a budget supplement" A sheriff in Georgia has even been the (emphasis added).37 subject of a grand jury investigation for alleged And criminal justice professor Mitchell misuse of forfeited assets (see also "Extrava- Miller and Lance Selva found that police gance with Forfeiture Funds in Camden Coun- supervisors were keenly aware of the finan- ty, Ga." on p. 19). In this particular county, cial benefit of engaging in forfeiture activities and frequently made operational decisions to • $3,000,000 was used to build a sheriff 's maximize perceived financial rewards.38 They substation; report observing "many such cases in which • vehicles were purchased not only for the operational goal was profit rather than the the department but also for other county incarceration of drug offenders. The pursuit departments and neighboring law enforce- of profit clearly influenced policies on case ment agencies; selection."39 • $250,000 was donated to the sheriff 's An example of how law enforcement alma mater for a scholarship.32 maintains its "addiction" to forfeiture funds is the practice of "reverse stings," in which FBI agent and researcher Gregory Vecchi police pose as drug sellers rather than buy- and criminal justice professor Robert Sigler ers.40 Forfeiture advocates' claims of "prevent- note, "[W]hat is evident from their behavior is ing crime and putting major offenders away" that federal, state, and local governments use are inconsistent with practices such as reverse assets forfeiture to generate revenue, despite stings because they target relatively low-level, their claims otherwise."33 For example, the U.S. non-trafficking drug offenders who are subject Attorney General stated in 1990, "We must to less severe criminal penalties than those significantly increase forfeiture production to arrested for drug sales and do not affect drug reach our budget target. Failure to achieve supply. Instead, law enforcement targets buyers 18 Extravagance with Forfeiture Funds in Camden County, Ga. In March 2007, Camden County, Ga., deputies pulled over Michael Annan, a 43-year-old immi- grant from Ghana, for speeding on I-95 on his way home from work. After a search, officers found no evidence of illegal activity but confiscated $43,720 in cash. Annan said the money was his life savings and that he was afraid to put it into a bank. A canine search found no trace of drugs and a background check on Annan yielded no drug arrests. Nevertheless, officers kept the money for further investigation and told Annan to call back in two weeks. Annan says that he did call, multiple times, but made no progress securing his money. A visit to the county seat in person was unsuccessful—the sheriff was too busy to see him. Finally, Annan hired a lawyer, who faxed tax and work records to the sheriff's office proving An- nan earned his money legitimately. The county did return the $43,720; however, Annan had to pay $12,000 to his attorney—more than a quarter of his life savings.1 Months after Annan was pulled over, the Georgia Bureau of Investigation began looking into expenditures by then-Camden County Sheriff Bill Smith, who had helped orchestrate the seizure of some $20 million over 15 years. Smith used the forfeiture fund for extravagant purchases with questionable utility for law enforcement—such as a $90,000 sports car and a $79,000 boat. He also used the fund to retain a private lawyer, to pay tuition for favored deputies at area colleges and to buy gas for employees' personal vehicles, among other improprieties.2 Smith further paid jail inmates to work on his own property, his girlfriend's and his ex-wife's.3 Camden County voters unseated Smith, who had been sheriff for 23 years, in July 2008.4 1 Burnett, J. (2008, June 16). Cash seizures by police prompt court fights. National Public Radio. Retrieved September 15, 2009, from http://www.npr.org/templates/story/story.php?storyId=91555835. 2 Burnett, J. (2008). Sheriff under scrutiny over drug money spending. National Public Radio. Retrieved September 16, 2009, from http://www.npr.org/templates/story/story.php?storyId=91638378&ps=rs; Pinkham, P. (2008, July 6). Sheriff 's spending revealed; Smith used $615,000 in federal funds for tuition, a lease, private lawyer and more. Florida Times-Union, p. A1. 3 Pinkham, P. (2007, October 14). Inmates reportedly did work out of state; Camden County Sheriff Bill Smith defends his handling of the trusty program, in which witnesses say he used inmate labor on private properties, even taking some to work on his former wife's home in South Carolina. Florida Times-Union, p. A1; Pinkham, P. (2007, September 20). Smith insists he's done no wrong; He responds to the lawsuit against him. Florida Times-Union, p. B1. 4 Pinkham, P. (2008, July 20). Voters say it's time for a change; Camden County seeks a fresh start after a scandalous year under Sheriff Bill Smith. Florida Times-Union, p. A1. 19 rather than sellers because buyers tend to have to federal asset forfeiture laws that would have more cash on hand subject to forfeiture.41 required that state proceeds from equitable Indeed, evidence indicates that a signifi- sharing with the federal government be subject cant percentage of state and local forfeiture to state law—meaning that if state law de- actions are initiated against suspected low- to mands that 50 percent of proceeds go to drug moderate-level offenders, especially low-level treatment or the general fund, the same would drug offenders, rather than the high-level tar- apply to equitable sharing payments.50 The gets that forfeiture advocates claim to be aiming amendments were repealed before they became for.42 effective.51 Prosecutors also benefit from asset forfei- ture. Assistant U.S. Attorney Craig Gaumer An Unlevel Playing Field calls asset forfeiture "a prosecutor's secret for Property Owners weapon."43 The National District Attorneys Association has promulgated several policy The profit motive in civil asset forfeiture statements and guidelines regarding asset laws provides a critical incentive for abuse. By forfeiture, recommending its use.44 Perhaps not contrast, property owners' ability to reclaim surprisingly, there is evidence that prosecutorial seized property is a check on forfeiture power. discretion has been inappropriately influenced The better legal procedures protect this ability, by the presence of asset forfeiture options.45 the more difficult it is for law enforcement to Current and former justice officials have forfeit property. This report examines two acknowledged the powerful incentives of key factors that determine how easily property financial rewards from forfeiture.46 In the NPR owners can defend their interests in civil asset series, the police chief of a small town in Texas forfeiture proceedings: the standard of proof made it clear that the retention of forfeited as- required to demonstrate that the property sets is a very attractive consideration: should be forfeited and the strength of an "in- nocent owner" defense.52 Law enforcement has become a business, and where best to hit these narcotics orga- Standard of Proof nizations other than in the pocketbook ... and then to be able to turn around and use The "standard of proof " means how much those same assets to benefit our depart- evidence the government must present at trial ment, that's a win-win situation as far as and how compelling that evidence must be in we're concerned.47 order to successfully claim property through civil asset forfeiture. The higher the standard Perhaps the clearest evidence of the impor- of proof set by state law, the harder forfeiture tance that law enforcement places on generat- is for the government and the more protection ing revenues through forfeiture is the political afforded property owners. pressure the law enforcement lobby has exerted The highest standard is "beyond a reason- to prevent reforms to asset forfeiture laws at the able doubt," commonly associated with convic- state and federal level.48 As law professors Eric tions on criminal charges. As shown in Table 2, Blumenson and Eva Nilsen and others have only four states require such a high standard for documented, lobbying by law enforcement has civil forfeiture proceedings, and one of those, resulted in considerable revisions and modifica- California, only uses it when certain property tions beneficial to law enforcement to forfeiture is at issue. (Most commonly, in states with two reform efforts.49 forfeiture standards, the higher one is for the One egregious example is law enforce- forfeiture of real property such as land and ment's lobbying efforts against amendments homesteads.) In another of those states, North 20 Data Reveals Texas Law Enforcement's Dependence on Forfeiture Funds Just how much do law enforcement agencies rely on forfeiture proceeds? To find out, the Institute for Justice examined the budgets of the top 10 forfeiture-earning agencies in Texas, as well as a random sample of 52 other agencies. Texas is one of the worst states for civil forfeiture, with bad laws and aggressive use of equitable sharing with the federal government. We found that forfeiture proceeds represent, on average, more than 14 percent of the budgets of these law enforcement agencies. The average agency budget in Texas is a little more than $1 million; 14 percent of that comes to a bit more than $47,000. In Texas, that would pay for any one of the following:1 • One law enforcement agency chief executive • Almost one-and-a-half police sergeants • Almost two police officers Clearly, 14 percent is a sizable share of an agency budget. Indeed, the records we requested indicated that many agencies actually count on securing forfeiture proceeds to fund their budgets. But the biggest forfeiture money-makers in Texas are even more reliant on forfeited funds: The top 10 forfeiture earners take in, on average, about 37 percent of their budgets in forfeiture funds. (To calculate that percentage, we removed one agency, the 76th District Attorney in Camp County, from the top 10 because its forfeiture proceeds represented an astonishing 1,344 percent of its budget, and that skewed the average.) Civil forfeiture advocates often claim that the process is used primarily by large agencies to target "high-profile" offenders. But we found that rural agencies in our sample of 52 Texas agen- cies appear to be even more dependent on forfeiture funds than others, with forfeiture proceeds representing, on average, nearly one fifth—18.3 percent—of their budgets. Similarly, the smaller agencies (those serving less than 1 million people) among the top ten forfeiture earners report forfeiture proceeds in excess of 65 percent of annual budgets. (Again, we removed the 76th District Attorney in Camp County for this calculation.) It seems unlikely that smaller and rural agencies meet more high-profile offenders than their urban counterparts—and more likely that forfeiture in rural areas is sweeping in instead every-day residents and visitors passing through, as stories of abuse in places like Tenaha suggest (see p. 16). 1 Calculations based on 2003 LEMAS data. 21 Carolina, all forfeitures are criminal actions; civil ered higher than mere probable cause and generally asset forfeiture essentially does not exist in North equates to the idea that it is more likely than not Carolina. Only Nebraska and Wisconsin require that the property is related to criminal conduct and beyond a reasonable doubt for all civil forfeiture. thus subject to forfeiture. Finally, 13 states use a "Probable cause" is the lowest standard used for "clear and convincing" standard for some property. forfeiture, and it is the standard for some property in It poses a greater challenge for government to prove 14 states. Probable cause is the same standard used its case than probable cause or preponderance, but to justify search warrants and the arrest of suspected less than reasonable doubt. law violators and means merely that the government In short, in the vast majority of states and at has a reasonable belief that a person has commit- the federal level, the standard of proof required ted a crime. It is also the standard law enforcement to forfeit an individual's property is lower than the must meet in most states for a seizure of property— standard required to prove that the individual was the first step in the forfeiture process. guilty of the criminal activity that supposedly justi- As Table 2 shows, 27 states employ a "prepon- fied the forfeiture in the first place. Given this situa- derance of the evidence" standard for forfeiture of tion, it is not surprising that upwards of 80 percent some property, and so does the federal government, of forfeitures occur absent a prosecution.53 making it the most common standard. It is consid- Table 2 Standard of Proof in State Forfeiture Laws* Alabama, Alaska, Delaware, Illinois, Massachusetts, Mis- Prima Facie/Probable Cause More difficult to forfeit assets souri, Montana, Rhode Island, South Carolina, Wyoming Probable Cause and Preponderance Georgia, North Dakota, South Dakota, Washington of the Evidence Arizona, Arkansas, Hawaii, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Mississippi, New Preponderance of the Evidence Hampshire, New Jersey, Oklahoma, Pennsylvania, Tennes- see, Texas, Virginia, West Virginia Preponderance of the Evidence and Kentucky, New York, Oregon Clear and Convincing Colorado, Connecticut, Florida, Minnesota, Nevada, New Clear and Convincing Mexico, Ohio, Utah, Vermont Clear and Convincing and Beyond a California Reasonable Doubt Beyond a Reasonable Doubt Nebraska, North Carolina**, Wisconsin * Most commonly, in states with two forfeiture standards, the higher one is for the forfeiture of real property. ** State law effectively does not have civil forfeiture. 22 Burden on Innocent Owners However, in most states and at the federal level, the burden is on the owner to establish Not only are most civil forfeitures subject her innocence, which would then exempt the to a standard of proof lower than that required property from forfeiture. This is the exact for criminal guilt, but in most states, property opposite of the dictum "innocent until proven owners are effectively guilty until proven inno- guilty" that applies in criminal cases. cent. As Table 3 shows, only in six states does In 1996, the U.S. Supreme Court held the government bear the burden of establishing in Bennis v. Michigan54 that property owners do that an owner is not innocent for forfeiture of not have a constitutional right to an "innocent all kinds of property. In another six states, the owner" defense in civil forfeiture actions. In burden depends on the property in question. Bennis, a wife's car was used without her knowl- Typically, in these states, the burden is on the edge by her husband to secure the services of government for real property, especially prima- a prostitute. The husband was arrested and ry residences, while it is on the owner for other the car seized. Under Michigan law, vehicles property such as cash. In 38 states, the burden used for such purposes were subject to seizure is on the owner to establish his innocence. and forfeiture. Furthermore, Michigan law did not provide for a defense based on an owner's Federal Equitable Sharing lack of knowledge about the use of the vehicle for illegal purposes—in other words, that the Despite legal environments in most states owner is innocent, and therefore the property that favor law enforcement over property own- should not be forfeited. The wife appealed the ers in forfeiture proceedings, state and local forfeiture of the vehicle, and the U.S. Supreme agencies often—and increasingly—turn to a Court ruled against her. lesser known asset forfeiture practice called The critical public and political reaction to "equitable sharing." this ruling, as well as media reports of question- The Comprehensive Crime Control Act able forfeiture activities, led to the inclusion of of 1984 allows state and local law enforce- an innocent owner defense in the 2000 Civil ment agencies to transfer assets they seize to Asset Forfeiture Reform Act (CAFRA) that federal law enforcement agencies. Federal law now applies to all federal forfeiture actions. In enforcement officials can take possession of this addition, all remaining states that previously did property and initiate federal forfeiture actions not have an innocent owner defense, including as long as the "conduct giving rise to the seizure Michigan, eventually passed legislation barring is in violation of federal law and where federal the forfeiture of property belonging to an in- law provides for forfeiture."55 nocent owner. Seized assets transferred to the federal Table 3 Innocent Owner Burden Alaska, Arizona, Arkansas, Connecticut, Delaware, Geor- gia, Hawaii, Idaho, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Owner must prove innocence York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Da- kota, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming Depends on property Alabama, Indiana, Kentucky, Maine, New Mexico, Utah Government must prove guilt California, Colorado, Florida, Kansas, Michigan, Oregon 23 Canine Sniffs Yield Unreliable Evidence for Forfeiture In forfeiture cases, police officers and prosecutors often rely heavily on the presence of trace amounts of cocaine detected on cash by canines—especially where the only other evidence of wrongdoing is an officer's subjective opinion of "suspicious circumstances."1 The value of such evidence for establishing a plausible connection to drug activity is seriously in question, however. Famously, in 1985, the Miami Herald asked 11 prominent citizens to supply a $20 bill for trace analysis. Ten of the 11 bills tested positive—implicating future-Attorney General Janet Reno, future-Governor Jeb Bush, a Catholic archbishop and a former Miss America winner.2 Scientists, in studies stretching back to 1987, have consistently found that a third to 97 per- cent of all bills in circulation are tainted by cocaine.3 The latest study, presented in August 2009 to the American Chemical Society, found cocaine on 90 percent of 234 banknotes from 18 U.S. cities. The findings, arrived at by means of a new method of gas chromatography, confirm numerous previous studies.4 In 1987, a Drug Enforcement Agency scientist found that one-third of all money at the Federal Reserve Building in Chicago had traces of cocaine. The study recommended "that trace analysis of currency for general enforcement or seizure be stopped." The law enforcement community has yet to follow that advice. Judges, however, on occasion demand more than a canine sniff test to establish a drug connection. For instance, U.S. Supreme Court Justice David Souter has noted "the pervasive contamination of currency by cocaine," 5 as have many lower courts.6 Enough do not, so canines are still widely employed to conduct searches that are practically guaranteed to return a positive result.7 1 United States v. $124,700.00, 458 F.3d. 2 Curriden, M. (1993, August). Courts reject drug-tainted evidence; Studies find cocaine-soiled cash so prevalent that even Janet Reno had some. American Bar Association Journal, 79, 22. 3 United States v. $639,558.00, 293 U.S. App. D.C. 384, 955 F.2d 712, 714 n.2 (D.C. Cir. 1992); Curriden, 1993. 4 Biello, D. (2009, August 16). Cocaine contaminates majority of U.S. currency; And it's not just the U.S.: Canada, Brazil have a preponderance of the drug powder on their bills, too. Scientific American. Retrieved September 16, 2009, from http://www.scientificamerican.com/article.cfm?id=cocaine-contaminates-majority-of-american-currency; Karch, S. (1997). Tainted money supply. Forensic Drug Abuse Advisor, 9(3), 20-21; Oyler, J. Darwin, W. D., & Cone, E. J. (1996). Cocaine contam- ination of United States paper currency, Journal of Analytical Toxicology 20, 213-216; Negrusz, A. Perry, J. L., & Moore, C. M. (1998). Detection of cocaine on various denominations of United States currency. Journal of Forensic Science, 43(3), 626-629; Jenkins, A. J. (2001). Drug contamination of U.S. paper currency. Forensic Science International, 121, 189-193; Curriden, 1993. 5 Illinois v. Caballes, 543 U.S. 405, 410-412 (2005) (Souter, J. dissenting). 6 United States v. $242,484.00, 351 F.3d 499, 511 (11th Cir. 2003), vacated on other grounds; United States v. $53,082.00, 985 F.2d 245, 250 n.5 (6th Cir. 1993); United States v.$80,760.00, 781 F. Supp. 462, 475 n.32 (N.D. Tex. 1991); United States v. $5,000, 40 F.3d 846, 849 (6th Cir. 1994); United States v.Carr, 25 F.3d 1194, 1214-1218 (3d Cir. 1994) (Becker, J. concurring in part and dissenting in part); United States v. $639,558.00, 293 U.S. App. D.C. 384, 955 F.2d 712, 714 n.2 (D.C. Cir. 1992). 7 United States v. $124,700.00, 458 F.3d. 822 (8th Cir. 2006). 24 government through equitable sharing agree- ties for many crimes (especially drug crimes). ments may be forfeited regardless of whether Critics note that these are rather superfi- an individual is charged, let alone convicted, of cial rationales.60 The most reasonable ex- a crime in either state or federal courts. If the planation is that it is in the financial interests assets are successfully forfeited to the federal of many state and local agencies to process government, the funds are deposited in the ap- forfeitures through the federal government propriate federal asset forfeiture fund, and state rather than to use their own existing state legal and local agencies receive a percentage back.56 framework. There are two forms of equitable sharing There are several reasons why state and activities. "Joint investigative" forfeitures are local agencies would elect to use equitable the result of investigative activities involving the sharing. First, when state and local agencies cooperation of federal and state or local law transfer seized property to the federal govern- enforcement agencies. These are particularly ment for forfeiture, that property is subject to common with drug and gang task forces involv- the federal government standard—preponder- ing federal, state and local law enforcement ance of the evidence—not the state standard, agencies. The percentage of funds shared with even if state law is more restrictive. Thus, it is state and local agencies depends on their role easier for the federal government to prevail in and effort in a particular seizure. forfeiture actions than some states. "Adoptive forfeitures" occur when state Second, in those states where law enforce- and local agencies seize assets as the result of ment does not receive all of the proceeds from their investigation of state crimes. If the origi- civil forfeiture, state law typically mandates that nal crime is also a federal crime, the property the proceeds be distributed to specific non-law is forfeitable under federal law. State and local enforcement purposes, such as education or agencies may then transfer seized property general fund expenditures. However, state and to federal law enforcement agencies, which local agencies can enter into agreements with can elect to "adopt" this property for federal federal agencies to coordinate and enhance forfeiture proceedings. State and local agencies forfeiture activities, and the funds obtained are receive 80 percent of the assets obtained from generally exempt from these restrictions. adoptive forfeitures, and the federal govern- Furthermore, the federal government ment retains the remaining 20 percent to offset requires that any funds distributed through eq- costs associated with federal fund operations. uitable sharing arrangements be used solely to The rationale for joint forfeitures is that fund law enforcement activities, even for agen- the federal government can serve as the sole cies in states where law enforcement receives processor of potentially complicated seizure none of the proceeds from state forfeitures.61 and forfeiture activities. Furthermore, for The federal government will discontinue geographic areas that may involve a multi-state equitable sharing agreements with an agency task force, the federal forfeiture laws can avoid if it is discovered that funds are being used for conflicts between statutes affecting different non-law enforcement purposes—even if state state and local agencies, creating a more equi- law requires such use. table return on agency participation. Moreover, in an effort to encourage the Adoptive forfeitures are more controver- creation of independent task forces designed to sial and have been the subject of considerable target particular crimes such as drug sales and scholarly criticism.57 Government officials58 trafficking, equitable sharing payments may and proponents of adoptive forfeitures59 be used to pay the salary of officer positions frequently cite improved inter-agency coordina- created to replace officers assigned full-time to tion and cooperation, more efficient forfeiture task forces—even in states that prohibit using processing and tougher federal criminal penal- forfeiture funds to pay officer salaries.62 25 In these ways, the federal government's to the "Request for Adoption of State or Local asset forfeiture program helps state and local Seizures" form, agencies avoid restrictions in state law that increase the effort necessary to forfeit funds or As a general rule, if a state or local agency diminish the incentives for such activities in the has seized property as part of ongoing first place.63 state criminal investigation, and if the criminal defendants are be- The direct payment of forfeiture ing prosecuted in state court, the forfeiture action should funds by the federal government also be pursued in state court. However, certain to federal, state and local agencies circumstances may make represents "a virtual cash cow." federal forfeiture appropri- ate. These circumstances include, but are not limited It is difficult to ignore the substantial differ- to, the following: (1) state laws or proce- ence in the return on investment for many law dures are inadequate or forfeiture experience enforcement agencies to engage in equitable is lacking in the state system with the result sharing activities compared with state forfeiture that a state forfeiture action may be unfeasible or actions. Vecchi and Sigler claim that the direct unsuccessful (emphasis added).67 payment of forfeiture funds by the federal government to federal, state and local agencies The emphasized passage indicates that represents "a virtual cash cow" for these agen- adoptive forfeitures are acceptable in cases in cies.64 which state and local law enforcement is uncer- Even advocates of forfeiture activities ac- tain they would prevail under state law. The knowledge the circumvention of state forfeiture language also suggests that federal adoptive laws that equitable sharing enables. For exam- forfeitures could be pursued even if the owner ple, California prosecutor Dee R. Edgeworth is being prosecuted in state court. Because the notes that while some states have homestead state would have to meet a beyond a reason- exemptions that preclude the forfeiture of real able doubt standard in criminal court, the only property that qualifies as a homestead, rationales for adoptive forfeiture in such cases would seem to be concerns about insufficient a state homestead exemption is not a de- evidence to convict or, in the event the state fense to a federal real property forfeiture prevails, the fact that existing state law allocates case because the federal supremacy clause less than the 80 percent proceeds granted un- preempts the state exemption…. There- der federal law. It is unclear how this language fore, in jurisdictions with state homestead supposedly reduces attempts to circumvent exemptions, law enforcement will use state laws.68 the federal forfeiture system for any real In one of the few empirical analyses of property that may be exempted under asset forfeiture to date, criminologists John state law.65 Worrall and Tomislav Kovandzic found that law enforcement agencies in states where at Edgeworth cites the U.S. Department least a portion of forfeiture proceeds must be of Justice policy manual for asset forfeiture used for non-law enforcement purposes had as discouraging adoptive forfeitures simply significantly higher levels of equitable sharing to avoid more burdensome state laws.66 The payments than agencies in states where law actual language in the policy manual, however, enforcement could keep all proceeds.69 The seemingly encourages such actions. According results suggest that law enforcement agencies in 26 states that require law enforcement to share forfeiture proceeds are more likely to engage in equitable sharing in order to avoid state restrictions. This is consistent with investigative reports such as the 2008 NPR series70 and scholarly research71 that highlight law enforcement efforts to maximize revenue through equitable sharing. For example, following the passage of a Missouri law re- quiring all forfeiture proceeds to be deposited in the state education fund, law enforcement agencies took specific steps to circumvent this law by increasing the use of equitable shar- separately—though given that 80 percent of ing.72 This is also consistent with the findings federal forfeitures occur absent prosecution, of our own original analysis of equitable shar- it is likely that the vast majority are civil asset ing data. forfeitures. Forfeiture critics argue that the self- funding nature of asset forfeiture, especially • Freedom of Information Re- equitable sharing proceeds that are not subject quests–Laws in 29 states clearly to restrictions of state law, poses real danger required data on asset forfeiture to the public's ability to oversee government use to be collected. The Institute resources, as state legislatures have less power to for Justice spent two years submit- set law enforcement budgets.73 Many depart- ting official freedom of information ments collect more in forfeiture revenues than requests to those states. Only 19 states their yearly operating budget, but they see no provided reliably useful information, accompanying reductions because state laws and as shown in Part II, the extent of frequently prohibit reducing law enforcement information and level of detail varies budgets as a result of new forfeiture revenues.74 widely. Two states responded with unusable data, and eight simply failed The Extent and Nature of Asset to respond. Thus, in most states, we Forfeiture in the United States know very little about the use of as- set forfeiture. It is important to note that some states may have included Data Sources equitable sharing proceeds, as well as proceeds from state-law forfeitures, To measure the extent of asset forfeiture in their reports. So these data may use, we relied on three sources of data. Alone, overlap with reported equitable shar- none provide a complete picture of asset for- ing receipts. feiture in the United States, but together they paint a clearer portrait. Although they all have • LEMAS–The Law Enforcement limitations, these sources represent the best- Management and Administrative available data on asset forfeiture. Part II of this Statistics (LEMAS) survey of law report provides the same data for each state. enforcement agencies nationwide is All of these data sources include both civil conducted every three to four years by and criminal forfeitures—none report them the Census Bureau on behalf of the 27 Despite State Protections, Nebraska Troopers Seize Cash Nebraska is one of only three states that holds the government to the highest possible legal standard of proof in civil forfeiture proceedings, requiring law enforcement to prove its case "be- yond a reasonable doubt." That did not stop state troopers from seizing and ultimately forfeiting $124,700 in cash from Nevada resident Emiliano Gonzolez without so much as charging, let alone convicting, him of a crime. This was possible through federal equitable sharing, as well as the low federal standards required for a successful forfeiture. In May 2003, a Nebraska trooper stopped Gonzolez for speeding. After learning from a dis- patcher that Gonzolez had a previous arrest for speeding that he did not disclose, troopers asked to search the car and discovered $124,700 in cash in a cooler in the back seat.1 Gonzolez, who was not fluent in English, told police he pooled cash from friends and their relatives in order to buy a refrigerated truck in Chicago. When he got to Chicago, the truck he intended to buy for a produce business had already been sold. He was driving home when he was stopped. Troopers seized the cash pursuant to federal forfeiture and controlled substances laws, in es- sence alleging that the money was involved in a drug crime. Gonzolez initially told police that he did not have large amounts of cash. He later testified that he was scared carrying so much money was illegal, and he had concealed the money in a cooler to avoid having it stolen. The trial court found that his story was "plausible and consistent" and denied the forfeiture. The 8th U.S. Circuit Court of Appeals later reversed the trial court's decision. In so doing, the court held that the government established by a "preponderance of the evi- dence" (the federal civil forfeiture standard of proof) a "substantial connection" between the money and a drug trafficking offense. The 8th Circuit wrote, "[W]hile an innocent traveler might theoretically carry more than $100,000 in cash across the country and seek to conceal funds from would-be thieves on the high- way, we have adopted the common-sense view that bundling and concealment of large amounts of currency, combined with other suspicious circumstances, supports a connection between money and drug trafficking"—even in the absence of any drugs or drug paraphernalia in the car or any prior drug offenses by Gonzolez or his investors. Indeed, among the "suspicious circumstances" cited, only one had any relation to evidence of a drug crime—a canine alert of drug residue on the money. Canine alerts on cash are notoriously unreliable (see p. 24). Especially as interpreted by the 8th Circuit, the preponderance of the evidence standard the government had to meet to forfeit Gonzolez's cash is significantly lower than the beyond a reason- able doubt standard required for civil asset forfeiture under Nebraska law. 1 United States v. $124,700, 458 F.3d 822 (8th Cir. 2006). 28 Bureau of Justice Statistics at the Findings U.S. Department of Justice.75 One question on the survey asks agen- Overall, these data begin to show that cies to report the total amount state and local agencies, as well as the federal of forfeiture proceeds received government, use asset forfeiture extensive- during the previous calendar ly—often to the tune of tens of millions of year as the result of participation dollars each year. As Table 4 shows, in just in a drug asset forfeiture pro- nine states, forfeited currency totaled more gram.76 Thus, LEMAS forfeiture than $70 million in just a two-year period, totals are based exclusively on from 2001 to 2002. This is the two-year forfeitures associated with drug period for which the most states reported, in offenses and likely only include response to freedom of information requests, funds received by law enforcement the total amount of currency forfeited by (excluding assets distributed to law enforcement. These do not include the other non-agency funds), thereby additional proceeds from the sale of prop- undercounting the total amount erty and vehicles, so the extent of forfeiture of forfeitures.77 LEMAS data is underrepresented by this number. likely include, at least for some Not surprisingly, the larger states in this agencies, both proceeds of forfei- list reported the greatest forfeiture totals, but tures conducted under state law even smaller states and those not commonly and those conducted via equi- identified as having serious crime or drug table sharing. problems report considerable asset forfei- ture activity. For example, Massachusetts • Federal Asset Forfeiture and Texas report similar currency forfeiture Fund Reports–Several federal totals for 2002, which suggests that forfeiture documents report annual informa- activity is not correlated with population size tion on the operation of the federal or the extent of crime and drug problems in Department of Justice's Assets For- a given state. feiture Fund (AFF) and the Trea- Freedom of information data also sury Forfeiture Fund (TFF) of the reveal that states appear to be forfeiting a U.S. Department of the Treasury. large number of vehicles, as Table 5 shows. Federal forfeiture funds are the Between 2001 and 2007, Texas and Virginia depository for all federally forfeited together forfeited more than 17,000 vehicles, assets—regardless of whether they and the revenues generated are likely sub- were initially seized by state and stantial. For example, Virginia reported the local agents and then accepted for value of vehicle forfeitures over a 12-year federal equitable sharing or the period as more than $34 million. While exclusive result of federal agents. many forfeited vehicles are either put into The sums of assets in these funds service or have limited resale value, the sale thus represent a wide-reaching of only a fraction of forfeited vehicles would picture of asset forfeiture in the still provide considerable proceeds. United States.78 29 Table 5 Number and Value of Vehicles Forfeited in Five Table 4 Forfeited Currency in Nine States, 2001 and 2002 State Number Average Total Vehicles 2001 2002 Total of per Year Value Vehicles Arkansas $3,494,483 $2,805,948 $6,300,431 $3,150,216 Maine 1999 4 $28,004 Hawaii $450,945 $645,537 $1,096,482 $548,241 2000 4 $17,600 Maine $338,248 $487,599 $825,847 $412,924 2001 6 $52,095 2002 7 $53,905 Massachusetts $5,255,308 $4,153,936 $9,409,244 $4,704,622 2003 7 $40,200 Michigan $8,811,342 $10,830,841 $19,642,183 $9,821,092 Totals 28 $191,804 Minnesota $960,081 $684,454 $1,644,535 $822,268 Virginia 1996 268 $451,285 Texas $17,445,639 $5,184,519 $22,630,158 $11,315,079 1997 391 $2,141,597 Virginia $3,752,846 $3,828,463 $7,581,309 $3,790,655 1998 418 $2,182,659 1999 409 $1,918,062 Washington $705,084 $680,645 $1,385,729 $692,865 2000 463 $2,107,804 Total $41,213,976 $29,301,942 $70,515,918 $35,257,959 2001 521 $2,620,232 2002 569 $2,598,131 Average $4,579,331 $3,255,771 $7,835,102 $3,917,551 2003 617 $3,323,225 per State 2004 803 $3,484,799 2005 827 $4,493,597 2006 745 $4,294,805 Forfeiture also appears extensive Federal reports also indicate 2007 772 $4,397,787 looking at LEMAS data, with more widespread—and growing—use of Totals 6,803 $34,013,983 than $1 billion in combined forfei- asset forfeiture by federal agents and Texas ture proceeds reported for 2000 and through equitable sharing. As Table 2001 805 NA 2003, the most recent years available. 6 shows, from 2006 to 2008, cur- 2002 209 NA In 2000, LEMAS surveyed 2,985 rency deposits alone to the Depart- 2003 1,575 NA agencies and reported a total of ment of Justice's Assets Forfeiture 2004 2,171 NA $669,703,443 in forfeiture proceeds. Fund (AFF) exceeded $1 billion each 2005 1,707 NA In 2003, the 2,859 agencies surveyed year, with tens or even hundreds of 2006 1,996 NA reported $536,944,811 in proceeds.79 millions more in property forfeitures. 2007 2,069 NA However, as noted earlier, it is likely Annual financial statements indicate Totals 10,532 NA that LEMAS undercounts the true that these years had a few exception- Arkansas extent of forfeiture use, both because ally high-value forfeitures (a single 2000 534 NA it only addresses drug forfeitures and case of $337 million, three fraud 2001 514 NA because it only asks for proceeds re- cases totaling $842 million, and $443 2002 522 NA turned to law enforcement agencies. million from five major cases); how- 2003 683 NA It is also not clear, because the survey ever, even after deducting the assets question does not ask, whether these from these exceptional cases, deposits 2004 779 NA data cover currency only or other for these years are higher than in 2005 771 NA assets seized, such as cars, homes and previous years. 2006 655 NA boats. 2007 688 NA 2008 585 NA Totals 5,731 NA Hawaii 2001 NA $536,040 2002 NA $487,147 2003 NA $575,675 2004 NA $457,792 2005 NA $332,230 30 2006 NA $460,855 2007 NA $468,290 Totals NA $3,318,029 Table 6 Deposits to Department of Justice Assets Forfeiture Fund, 2001 to 2008 Cash and Cash Equivalents Forfeitures of Property Totals FY 2001 $357,900,000 $48,900,000 $406,800,000 FY 2002 $355,600,000 $68,000,000 $423,600,000 FY 2003 $413,900,000 $72,100,000 $486,000,000 FY 2004 $448,500,000 $94,600,000 $543,100,000 FY 2005 $514,900,000 $80,600,000 $595,500,000 FY 2006 $1,009,200,000 $115,700,000 $1,124,900,000 FY 2007 $1,409,000,000 $106,700,000 $1,515,700,000 FY 2008 $1,222,600,000 $63,400,000 $1,286,000,000 Totals $5,731,600,000 $650,000,000 $6,381,600,000 Averages $716,450,000 $81,250,000 $797,700,000 Moreover, in 2008, for the first time in forfeiture proceeds, the Fund received deposits its history, the AFF held more than $1 billion of $93.7 million from forfeited cash and the sale in funds available for law enforcement activi- of forfeited property.81 By 2008, the Fund held ties. These are net assets (or "net position" in more than $1 billion in net assets. Department of Justice language)80—forfeiture This $1 billion in net assets would cover all proceeds available to law enforcement after or almost all of the total justice system expendi- debts owed by the Fund are paid. These debts tures (including police, judicial and corrections include payments to third parties, equitable combined) in 2006 for Utah ($1.2 billion), New sharing payments, asset management expenses, Mexico ($1.2 billion), Mississippi ($1.1 billion), special contracts associated with Fund opera- Kansas ($1.3 billion), Iowa ($1.2 billion) or tion and funds supporting joint law enforcement Arkansas ($1.2 billion).82 operations. In short, this is money that federal In addition, both the AFF and TFF may law enforcement can use. invest a portion of their assets in U.S. Treasury Table 7 reports the growth of net assets in securities and retain the interest income for both the AFF and the TFF in fiscal years 2000 future operations. During fiscal years 2000 to to 2008. Although the AFF has considerably 2008, the time period covered in Table 7, the more revenues, the TFF has also increased sub- range of investment income was $11.5 million stantially, with more than $400 million in net to a staggering $111 million in 2007. Thus, assets in 2008 alone. considerable sums of money are generated by Consider that in 1986, the second year the investment of forfeiture assets, which are after the AFF was created and amendments to then used to strengthen the Department of federal forfeiture law allowed law enforcement Justice's and Treasury Department's ability to agencies greater latitude to retain and spend forfeit more assets. 31 Table 7 Departments of Justice and Treasury Forfeiture Funds Net Assets, 2000 to 2008 AFF Net Assets TFF Net Assets Totals FY 2000 $536,500,000 NA NA FY 2001 $525,800,000 $237,300,000 $763,100,000 FY 2002 $485,200,000 $173,000,000 $658,200,000 FY 2003 $528,400,000 $177,200,000 $705,600,000 FY 2004 $427,900,000 $194,100,000 $622,000,000 FY 2005 $448,000,000 $255,300,000 $703,300,000 FY 2006 $651,100,000 $236,800,000 $887,900,000 FY 2007 $734,200,000 $361,400,000 $1,095,600,000 FY 2008 $1,000,700,000 $426,800,000 $1,427,500,000 Just as federal asset forfeiture funds have and the amount of money that has returned to grown, so too have equitable sharing payments state and local law enforcement has increased from the AFF to state and local agencies and significantly over the past three years. There task forces—essentially doubling from 2000 can be little doubt that a considerable amount to 2008, from a little more than $200 million of the asset forfeiture that occurs in the United to $400 million, as shown in Figure 1. The States is the result of equitable sharing. nine-year total comes to more than $2.4 billion, Figure 1 Equitable Sharing Payments to States from the Department of Justice Assets Forfeiture Fund, 2000 to 2008 $450,000,000 $400,000,000 $350,000,000 $300,000,000 $250,000,000 $200,000,000 $150,000,000 $100,000,000 $50,000,000 32 $0 FY 2000 FY 2001 FY 2002 FY 2003 FY 2004 FY 2005 FY 2006 FY 2007 FY 2008 Forfeiture as Extortion in Jim Wells County, Texas In August 2005, Javier Gonzalez borrowed a car from his employer at a used car lot in Austin, Texas, and drove to Brownsville to visit his dying aunt, who had helped raise him, and also to make arrangements for her funeral. He brought more than $10,000 in cash to provide for a proper burial with a coffin and headstone. She passed away in December 2005. Before Gonzolez made it to Brownsville, however, he was pulled over because the borrowed Mazda's front license plate was sitting on the dashboard instead of affixed to the front bumper. This is a common misunderstanding in Texas—many dealers and motorists think the front plate is optional, and police officers rarely pull them over to tell them otherwise. When the Jim Wells County Task Force officers found out about the cash, they handcuffed him and took him to a local fire station for more interrogation and a more thorough search of the car. The search turned up no drugs or other contraband, but officers produced an affidavit saying they were seizing his money and offered him a choice: Sign away any legal claim to the cash or face money laundering charges and have his boss' car seized as well. Feeling he had no other choice, Gonzalez signed. Gonzalez hired an attorney, however, and in April 2008 won his money back, plus attorney's fees and an award. In the settlement, the county denied all accusations and did not admit wrong- doing. In March 2008, Joe Garza, the District Attorney for Texas' 79th Judicial District (which includes Jim Wells and neighboring Brooks County) was voted out of office, in large part because of a grow- ing public scandal regarding his use of forfeiture funds.1 An audit has revealed that Garza distrib- uted $1.1 million to three favored employees between 2004 and 2008, and many others may have received improper payments for "car allowances, stipends, reimbursements, advances, audits, travel (including to casinos), contract labor and other seemingly illogical purposes."2 1 Reid, J. (2008, May 16). Highway robbery. The Texas Observer, 10(10), 16. 2 Cuellar, Jr., M. J. (2009, July 14). State asks for audit of DA's forfeiture fund; Saenz details 'the scheme' to commis- sioners. Alice Echo-News Journal, npn; Cuellar, Jr., M. J. (2009, August 5). More details emerge from DA forfeiture fund; 46 others received more than $400,000 from fund. Alice Echo-News Journal, npn; Powell, J., & Malan, D. (2009, May 2008). Jim Wells probes drug-fund use; $4.2 million spent by ex-DA Garza. Corpus Christi Caller-Times, p. B17. 33 Table 8 Currency Forfeitures in Four States, 2001 to 2006 Oklahoma Texas Virginia Washington Total Average 2001 $3,924,541 $17,445,639 $3,752,846 $705,084 $25,828,110 $6,457,028 2002 $6,520,748 $5,184,519 $3,828,463 $680,645 $16,214,375 $4,053,594 2003 $5,887,904 $40,002,068 $5,467,848 $986,400 $52,344,220 $13,086,055 2004 $5,236,443 $35,976,382 $6,754,732 $824,390 $48,791,947 $12,197,987 2005 $5,378,123 $25,308,679 $6,698,992 $1,329,935 $38,715,729 $9,678,932 2006 $5,648,549 $33,062,289 $5,180,497 $866,406 $44,757,741 $11,189,435 Total $32,596,308 $156,979,576 $31,683,378 $5,392,860 $226,652,122 $56,663,031 Average $5,432,718 $26,163,263 $5,280,563 $898,810 $37,775,354 $9,443,838 State freedom of information data also show were for less than $614 to $1,288, depending on an increase in forfeiture use, although there are the year under examination. yearly fluctuations. Table 8 shows the growth of Thus, rather than high-level targets and crimi- currency forfeitures in four states over the six- nal organizations, state and local law enforcement year period of 2001 to 2006. (Only four states frequently seize and forfeit relatively small amounts provided these data for these years.) In particu- of currency that would more likely be held by low- lar, Texas experienced tremendous increases after level offenders or ordinary individuals. 2002. During this six-year period, law enforce- Similarly, as shown in Table 5, the average value ment agencies in these four states alone reported of vehicles forfeited appears to be low, typically less currency forfeitures of more than $226 million. than $6,000. And given that this average presum- The growth in forfeitures also holds true for ably includes some expensive vehicles, it is likely that vehicles, as shown in Table 5. The number of the median (which is unavailable) is considerably vehicles forfeited in the larger states, Virginia less than $6,000. Again, this seemingly contradicts and Texas, increased nearly threefold from 1996 proponents' claims87 that forfeitures target expensive to 2007 and from 2001 to 2007, respectively.83 "toys" (such as vehicles) that criminals purchase with In short, the best available data on asset the proceeds from their "ill-gotten gains." forfeiture in the United States indicates that its use is extensive at all levels of government and Is Law Enforcement suggests that it is growing. Contrast this find- Policing for Profit? ing with rates of drug usage and arrest, the most common application of civil forfeiture laws. The percentage of youths and adults who Available data indicate that forfeiture use is admit to use of various illegal substances sharply widespread and growing—but are law enforce- declined in the early 1980s and has remained ment agencies "policing for profit"? Do laws that relatively stable since then,84 while drug arrests make forfeiture more rewarding and easier for law have continued to rise.85 Thus, despite relatively enforcement lead to greater use of forfeiture? stable rates of drug usage, police have increased To find out, we tested the hypothesis that stricter arrests—and appear to be profiting considerably state forfeiture laws, coupled with smaller alloca- from those activities. tions of proceeds to law enforcement, lead to less use Available data also appear to contradict a of forfeiture under state law by examining federal key argument from forfeiture advocates. Advo- equitable sharing data. Equitable sharing provides a cates continually highlight how forfeiture is used way for state and local law enforcement agencies to to pursue high-level targets and major criminal circumvent unfavorable state forfeiture procedures, organizations.86 Table 9 suggests that, at least so we would expect to see greater use of equitable 34 at the state level, this is not necessarily the case. sharing in states where law enforcement keeps less One-half of all Virginia currency forfeitures and faces greater procedural burdens. Table 9 Frequency of Currency Forfeiture Actions, Maine and Virginia Number forfeitures Average value per forfeiture Median value Maine 1999 80 $12,782 $2,630 2000 44 $8,208 $2,221 2001 69 $49,012 $1,860 2002 68 $7,171 $2,470 2003 70 $9,758 $2,250 Maine Total 331 Virginia 1996 1,098 $2,373 $707 1997 1,184 $1,893 $702 1998 1,332 $2,253 $645 1999 1,492 $2,050 $628 2000 1,623 $2,392 $628 2001 1,693 $2,217 $685 2002 1,848 $2,072 $631 2003 2,160 $2,531 $615 2004 2,456 $2,750 $660 2005 1,723 $3,888 $700 2006 1,556 $3,329 $1,235 2007 1,689 $4,104 $1,289 Va. Total 19,854 This is, in fact, precisely what we found. provide consistent coverage between states and The results suggest, albeit indirectly, that when include all states. However, LEMAS does not state law makes forfeiture less rewarding and distinguish between state-level and equitable more difficult, state and local law enforcement sharing receipts. Therefore, we cannot be agencies engage in less of it. certain whether an analysis would measure the Ideally, we would also test the relation- relationship between state forfeiture laws and ship between state forfeiture laws and proceeds state forfeiture proceeds, equitable sharing pro- from forfeitures conducted under state law. ceeds, or both. The reliability of any relation- Unfortunately, because state record-keeping on ship we would find would be highly suspect.88 forfeiture is limited, there is no sufficient source of data on state-law forfeitures for such an analysis. One possibility is the data received through freedom of information requests. But these data represent less than half of the states, span different years and cover different levels and types of law enforcement agencies from state to state. The result is that the sample is simply too small, and the quality of the data too spotty, to be able to come to any solid conclusions. 35 Another possibility is LEMAS data, which In Lamar County, Ga., "They had guns and badges and they just took it." In September 2007, Chris Hunt was driving on I-75 through central Georgia on his way to see his mother in his hometown of Dublin. Lamar County sheriffs stopped Hunt, who owns a car detailing business, for speeding. Officers say they smelled burnt marijuana and alcohol in the car, discovered marijuana on the floor, and noted that Hunt had bloodshot eyes, all claims that Hunt de- nies. Upon finding $5,581, officers confiscated the cash over Hunt's protests. He said the money was the weekend's profits from his shop. A canine later detected drug residue on the cash (a notoriously unreliable indicator of drug activity see page 24). The sheriffs did not find a testable amount of drugs, however, nor alcohol or any other contraband. Hunt was never charged with a crime. "It was my hard-earned cash," said Hunt. "They had guns and badges and they just took it." National Public Radio examined other federal forfeiture cases from Lamar County and found the same pattern—motorists without previous narcotics arrests stopped and their cash seized because officers claimed they could smell marijuana they could not find, the motorist acted nervous and police dogs alerted on the cash.1 Hunt contacted an attorney to help get his money back and filed a claim in November 2007.2 In July 2009, he received half back as part of a negotiated settlement.3 1 Burnett, J, (2008, June 16). Cash seizures by police prompt court fights. National Public Radio. Retrieved Septem- ber 15, 2009, from http://www.npr.org/templates/story/story.php?storyId=91555835; Complaint at 1, United States v. $5,581.00 in United States Funds No. 5:08-tc-05000 (M.D.Ga. filed Feb. 06, 2008). 2 Complaint at 1, United States v. $5,581.00 in United States Funds No. 5:08-tc-05000 (M.D.Ga. filed Feb. 06, 2008). 3 Settlement at 1, United States v. $5,581.00 in United States Funds No. 5:08-cv-31 (M.D.Ga. dismissed Jul. 28, 2009). 36 Analysis sible for enforcing drug laws in their respective jurisdiction, and region of the country. For a The analysis of equitable sharing and its more detailed description of our methods, see relationship to state laws relied on a sample of Appendix A. 563 law enforcement agencies. The measure of equitable sharing reflected payments of cash Results and sale proceeds returned to state and local law enforcement agencies through the Depart- The findings from the equitable sharing ment of Justice's Asset Forfeiture Program. analysis are unequivocal: Agencies in states Because any one year may be atypical and thus that limit the ability to profit from forfeiture skew results, we averaged equitable sharing proceeds receive significantly more equitable payments received by agencies for fiscal years sharing proceeds. This suggests that law en- 2000 to 2004. Finally, we divided this five-year forcement agencies are circumventing restric- average by the size of the resident population tive state laws. served by the agency to arrive at a per capita Results indicate law enforcement agencies measure of equitable sharing payments.89 The in generous forfeiture states receive significantly use of a per capita measure controls for popula- lower equitable sharing payments from the tion differences and minimizes concerns that Department of Justice. For example, each 25 our results are dominated by larger agencies percentage point decrease in the state profit that can be expected to encounter more drug- motive (say, from 100 percent to 75 percent) related activity simply because they serve a boosts federal equitable sharing by $7,500 per larger population. year. This is for a law enforcement agency Differences in equitable sharing payments serving an average-sized population of 300,000. were then compared to three measures of Thus, as Table 10 shows, law enforcement state forfeiture laws:90 the standard of proof agencies in states with no profit motive will required; whether the innocent owner burden receive, on average, four times that amount— is on the owner, government, or whether it $30,000—compared to agencies in states where depends on the property; and the profit motive 100 percent of proceeds go to law enforcement. (the percentage of forfeited assets agencies Put another way, 26 states permit law en- receive).91 forcement to use all civil forfeiture proceeds. If We also controlled for various factors that these states were to do away with the profit mo- could muddy the relationship between equitable tive, they could expect law enforcement to turn sharing proceeds and state laws: the number of more to equitable sharing, with the average- full-time officers assigned to special or multi- sized agency taking in $30,000 more in equi- agency drug enforcement units, the arrest rate table sharing proceeds. The average-sized law (per 100,000 population) for drug manufac- enforcement agency receives about $120,000 in turing and selling, the violent crime rate (per equitable sharing payments already, so an ad- 100,000 population), law enforcement agency ditional $30,000 would represent a 25 percent type, whether the agency was primarily respon- increase, on average. Table 10 Boost in Equitable Sharing Payments from Stricter State Laws Dollar Increase Average (Average-sized Law Enforcement Percentage Increase Agency) Profit Motive (100 percent- $30,000* 25 percent age point decrease) Innocent Owner Burden (on $27,600* 23 percent government) Standard of Proof (stricter $16,860** (in presumed innocent states 14 percent by one level) only) 37 * significant at .10 level; **significant at .01 level. Seizing Elderly Woman's Home in Philadelphia Margaret Davis, a 77-year-old homeowner with multiple serious medical conditions, including end-stage renal disease, was in the habit of leaving her North Philadelphia home unlocked so her neighbors, who routinely checked up on her, could come and go. She used paratransit to travel to dialysis treatment three times a week.1 In August 2001, police chased several alleged drug dealers through Davis' front door. The suspects escaped out the back. Davis gave the officers permission to search her home and they found drugs, left in plain view, presumably by the fleeing suspects.2 The matter should have ended there, but in September 2001 the Philadelphia District Attorney's office filed a motion to seize the home even though Davis was not a party to any drug dealing.3 Unable to afford an attorney, Davis was referred to the Civil Practice Clinic at the University of Pennsylvania Law School, which took on the case in February 2002. In April, as the case was working its way through court, police chased another suspect into Davis' house and caught him attempting to hide drugs. Fortunately, Davis' attorney was able to reach an agreement with the Dis- trict Attorney's office, which withdrew the petition in November of 2003.4 1 E-mail exchange with Louis S. Rulli, Practice Professor of Law and Director of Clinical Programs, University of Pennsylvania Law School, August 18-20, 2009. 2 Amended Petition for Forfeiture at 10, Commonwealth of Pennsylvania v. 1365 W. Colwyn Street No. 2903 (Pa. Ct. Com- 38 mon Pleas filed May 16, 2002). 3 Civil Docket Report, Commonwealth of Pennsylvania v. Davis, Case ID: 010902903. 4 E-mail exchange with Louis S. Rulli; Commonwealth of Pennsylvania v. 1365 W. Colwyn Street No. 2903 at 10. Similarly, results suggest that, in states changes in the profit motive are even more where innocent owner statutes place a greater pronounced. burden on the state, agencies skirt this proce- If the owner is presumed guilty and must dural safeguard by engaging in more equitable prove his innocence, as in 38 states for all sharing, which relies on the less burdensome property and another six for some property, federal standard for the government. Switching forfeiture is easier for the government. In the burden of proof in innocent owner defenses those states, as shown in Table 11, a 25 percent from the property owner to the government in- increase in the profit motive under state law is creases expected equitable sharing payments by associated with a decrease in equitable shar- $27,600 per year for an average-sized agency, ing payments of about $9,750 per year for an or an increase of about 23 percent in equitable average-sized law enforcement agency. This sharing receipts. is a larger effect than we found when analyz- By itself, results on the standard of proof ing profit motive alone (a decrease in equitable alone were not statistically significant. How- sharing payments of $7,500 for each 25 percent ever, the combination of placing the burden on increase in the profit motive). Raising the the government to establish a property owner's profit motive in state law means that agencies guilt and raising the standard of proof leads to will turn to equitable sharing less, even more a statistically significant increase in equitable so in presumed guilty states where forfeiture is sharing payments. Specifically, in states where already relatively easy under state law. owners are presumed innocent, raising the stan- However, when the owner is presumed dard of proof one level boosts equitable sharing innocent and the state must prove guilt, as in receipts by $16,860 per year for an average- only six states, law enforcement agencies will sized agency, an increase of about 14 percent. participate more often in equitable sharing, The effect of increasing the standard of proof no matter the percentage they are allowed to was not statistically significant in presumed keep in state seizures. Thus, it appears that guilty states. presumed innocent laws make state forfeiture Turning to the combination of innocent procedures so onerous for law enforcement that owner burden and profit motive, when the in- they more frequently turn to federal equitable nocent owner burden switches from the owner sharing, regardless of the profit motive in state to the government, we find that the effects of law. Table 11 Impact of Profit Motive in Presumed Guilty and Presumed Innocent States Change in Equitable Sharing Payments (Average-sized Law Enforcement Agency) Decreases $9,750 with each 25 percentage point increase Presumed Guilty States in profit motive** Presumed Innocent States Increases, regardless of size of profit motive* * significant at .10 level; **significant at .01 level. 39 In short, all of these results demonstrate the effects of hurdles to forfeiture in state law. that all three factors of state forfeiture law Even comparing similar agencies in similar that we studied—profit motive, innocent crime-rate areas, the agencies in states with owner burden and standard of proof— more restrictive and less generous state laws impact whether law enforcement agencies will use equitable sharing more. choose to pursue equitable sharing. More- In all, these results provide compelling over, when state laws make forfeiture more evidence that law enforcement agencies re- difficult and less rewarding, agencies are apt spond to incentives in state law—specifically to turn to the federal government's easier by using equitable sharing more when that and more generous forfeiture procedures. method of forfeiture is more likely to turn Importantly, all of these findings held a profit than state-law procedures. This true—and indeed, became stronger—even also suggests, though indirectly, that states after controlling for the variables noted that make forfeiture more difficult and less above, such as drug arrests and violent crime rewarding see less forfeiture under state rates. Put another way, the number of drug law. Altogether, the results make clear that arrests or violent crimes in an area or the forfeiture laws that give law enforcement size or mission (drug-related or not) of a law agencies a share of forfeiture proceeds create enforcement agency does not "explain away" a dynamic of "policing for profit." 40 Part II: Grading the States Part II 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 in- centives 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 sourc- es 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 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 assign- ing 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. 41 Table 12 Elements of the Forfeiture Law Grades Profit Motive Innocent Owner (Percentage of Standard of Proof Burden Proceeds to Law Enforcement) Government (owners A Beyond a reasonable doubt 0% to 5% presumed innocent) Beyond a reasonable doubt/clear and B 5.1% to 20% convincing and Clear and convincing Clear and convincing/preponderance C Depends on property 20.1% to 80% of the evidence Preponderance of the evidence and D Preponderance of the evidence/prob- 80.1% to 95% able cause Owner (owners pre- F Probable Cause 95.1% to 100% sumed guilty) • 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 agen- cies 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 at- tempt 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. 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 di- viding 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. 42 State Grades, Alphabetically by State Law Grade Evasion Grade Final Grade Alabama D- C D Alaska F B D+ Arizona D- C D Arkansas D- C D California C+ F D Colorado C+ C C Connecticut C+ B C+ Delaware F A C Florida D+ D D Georgia D- F D- Hawaii D- C D Idaho D- A C Illinois D D D Indiana B+ C C+ Iowa D- C D Kansas D- C D Kentucky D- C D Louisiana D B C- Maine B+ A A- Maryland B C C+ Massachusetts F C D Michigan D- D D- Minnesota D B C Mississippi D C D+ Missouri B C C+ Montana F B D+ Nebraska C C C Nevada D- C D+ New Hampshire D C D+ New Jersey D- C D New Mexico D- C D+ New York C- F D North Carolina A- D C+ North Dakota B A B+ Ohio B+ F C- Oklahoma D- C D Oregon C B C+ Pennsylvania D- C D Rhode Island D B C- South Carolina F B D+ South Dakota D- A C Tennessee D- C D Texas D F D- Utah D- B C- Vermont B+ B B Virginia D- D D- Washington D- C D West Virginia D- D D- 43 Wisconsin C C C Wyoming F A C State Grades, Ranked Highest to Lowest Law Grade Evasion Grade Final Grade Maine B+ A A- North Dakota B A B+ Vermont B+ B B Connecticut C+ B C+ Indiana B+ C C+ Maryland B C C+ Missouri B C C+ North Carolina A- D C+ Oregon C B C+ Colorado C+ C C Delaware F A C Idaho D- A C Minnesota D B C Nebraska C C C South Dakota D- A C Wisconsin C C C Wyoming F A C Louisiana D B C- Ohio B+ F C- Rhode Island D B C- Utah D- B C- Alaska F B D+ Mississippi D C D+ Montana F B D+ Nevada D- C D+ New Hampshire D C D+ New Mexico D- C D+ South Carolina F B D+ Alabama D- C D Arizona D- C D Arkansas D- C D California C+ F D Florida D+ D D Hawaii D- C D Illinois D D D Iowa D- C D Kansas D- C D Kentucky D- C D Massachusetts F C D New Jersey D- C D New York C- F D Oklahoma D- C D Pennsylvania D- C D Tennessee D- C D Washington D- C D Georgia D- F D- Michigan D- D D- 44 Texas D F D- Virginia D- D D- West Virginia D- D D- ALABAMA Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW Alabama ranks toward the bottom of civil forfeiture laws in the country. In Ala- EquitablE Sharing bama, to forfeit property, the government only needs to present a prima facie case ProcEEdS from the aSSEtS the property is related to criminal activity and thus subject to forfeiture. Thereafter, ForFEiturE Fund (aFF) the burden is usually on the property owner to prove that he is innocent—that the underlying offense was committed without his knowledge or consent—and therefore the property cannot be taken. However, if the property at issue is real property, like Proceeds Returned a home, the burden is on the state to prove that the owner is not innocent, providing to State more protection to owners. FY 2000 $1,898,205 In Alabama, law enforcement keeps 100 percent of the proceeds for any sales of FY 2001 $2,602,074 seized property, which creates a strong incentive for law enforcement to seize prop- erty, even in situations where it may not be warranted. Compounding the problem, FY 2002 $1,968,319 there is no requirement in Alabama that state and local law enforcement agencies FY 2003 $4,216,595 account for their forfeitures. In addition, Alabama received more than $40 million in equitable sharing proceeds from 2000 to 2008. FY 2004 $6,628,648 FY 2005 $4,866,686 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2006 $5,314,799 FY 2007 $8,563,174 FY 2008 $6,500,693 Total Assets Assets Forfeited per Total $42,559,193 Forfeited Law Enforcement Agency Average 1993 $7,641,801 $47,075 $4,728,799 per Year 1997 $13,220,110 $31,422 2000 $3,842,602 $10,032 2003 $6,105,514 $19,791 FrEEdoM of inForMation data no data available; not required to collect 45 ALASKA Forfeiture Law Grade D+ State Law Evasion Grade FINAL GRADE FORFEITURE LAW Alaska has terrible civil forfeiture laws. Not only does the government merely need EquitablE Sharing to show probable cause to forfeit property, but an innocent owner bears the burden ProcEEdS from the aSSEtS of trying to reclaim his property and prove his innocence. Once a property owner ForFEiturE Fund (aFF) is given notice that his property has been seized, he has thirty days to respond. If he fails to claim the property within that time frame, it is automatically forfeited. These problems are compounded by the fact that law enforcement in Alaska keeps 100 Proceeds Returned percent of the revenues generated by civil forfeitures, creating a perverse incentive to State to seize as much property as possible. Moreover, there is no legal requirement that FY 2000 $497,162 Alaska authorities collect or report data on their forfeitures. FY 2001 $291,732 FY 2002 $656,799 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2003 $781,954 FY 2004 $419,726 FY 2005 $704,298 Total Assets Assets Forfeited per Forfeited Law Enforcement Agency FY 2006 $1,096,715 FY 2007 $2,238,822 1993 $951,002 $88,125 FY 2008 $562,221 1997 $373,114 $6,497 Total $7,249,429 2000 $555,683 $11,376 Average 2003 $1,479,741 $30,651 $805,492 per Year FrEEdoM of inForMation data no data available; not required to collect 46 ARIZONA Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW Arizona's civil asset forfeiture laws are in need of serious reform. In Arizona, EquitablE Sharing the government may forfeit your property by showing by a preponderance of the ProcEEdS from the aSSEtS evidence that the property is subject to forfeiture. Unfortunately, a property owner ForFEiturE Fund (aFF) claiming an innocent owner exemption to the forfeiture laws—because, for example, he did not know his property was being used illegally—bears the burden of proving Proceeds Returned his innocence. to State In Arizona, law enforcement personnel have a strong incentive to seize as much FY 2000 $1,943,015 property as they can since they receive 100 percent of the funds raised through civil FY 2001 $3,639,423 forfeitures. Even more troublesome, Arizona law enforcement can use forfeiture revenue to pay the direct salaries of personnel.1 Arizona took advantage of its broad FY 2002 $2,226,222 forfeiture statutes by collecting more than $64 million in forfeiture revenue in a mere FY 2003 $2,223,797 four-year period (2000-2003). Arizona also received over $35 million in equitable sharing revenue from 2000 to 2008, although these numbers may overlap to some FY 2004 $2,161,873 extent, as it is not clear whether equitable sharing revenue was included in responses FY 2005 $2,021,896 to freedom of information requests. FY 2006 $8,930,498 1 Keller, T., & Wright, J. (2004). Policing and prosecuting for profit: Arizona's civil asset forfeiture laws violate basic due process protections (No. 198). Phoenix, AZ: Goldwater Institute. FY 2007 $6,763,897 FY 2008 $6,001,689 ForFEiturES as rEPortEd to lEMaS (drug-related only) Total $35,912,310 Average $3,990,257 per Year Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $9,085,629 $247,399 1997 $21,045,288 $140,611 2000 $11,768,481 $101,529 2003 $17,333,065 $145,703 FrEEdoM of inForMation data reports of forfeitures by county; types and number of law enforcement agencies unclear State Counties Total 2000 $1,583,751 $12,388,602 $13,972,353 2001 $3,154,593 $12,083,186 $15,237,779 2002 $4,183,462 $12,445,228 $16,628,690 2003 $4,359,795 $14,319,403 $18,679,198 Total $13,281,601 $51,236,419 $64,518,020 47 Average $3,320,400 $12,809,105 $16,129,505 per Year ARKANSAS Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW EquitablE Sharing Arkansas civil forfeiture laws put the property of ordinary citizens at risk. To forfeit your property, the state only needs to show that it is more likely than not that your ProcEEdS from the aSSEtS property is related to criminal activity and thus subject to forfeiture—a legal standard ForFEiturE Fund (aFF) known as preponderance of the evidence. To recover seized property, an innocent owner bears the burden of proving his innocence. Moreover, law enforcement in Proceeds Returned Arkansas reaps all of the rewards of civil forfeiture. It keeps 100 percent of all funds to State generated through forfeiture. FY 2000 $540,568 FY 2001 $911,267 FY 2002 $773,525 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2003 $477,238 FY 2004 $2,377,787 Total Assets Assets Forfeited per FY 2005 $957,776 Forfeited Law Enforcement Agency FY 2006 $4,406,266 1993 $4,015,853 $63,989 FY 2007 $1,792,272 1997 $4,838,972 $14,689 FY 2008 $2,581,575 2000 $7,670,474 $23,293 Total $14,818,274 2003 $2,279,525 $8,752 Average $1,646,475 per Year FrEEdoM of inForMation data reports of forfeitures by districts, which include all law enforcement agencies Number Number of Number of other Currency of cars weapons properties 2000 $5,544,742 534 249 201 2001 $3,494,483 514 241 165 2002 $2,805,948 522 232 141 2003 $3,816,823 683 282 208 2004 $4,299,354 779 245 180 2005 $7,003,838 771 223 172 2006 $5,556,583 655 162 141 2007 $4,301,003 688 187 132 2008 $5,160,593 585 147 130 Average $4,664,819 637 219 163 48 per Year Total $41,983,367 5,731 1,968 1,470 CALIFORNIA Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW Compared to most other states, California's forfeiture laws provide better protections EquitablE Sharing to property owners and do not provide as strong of a profit incentive to law enforce- ProcEEdS from the aSSEtS ment to take property. For the government to forfeit property in California, it must ForFEiturE Fund (aFF) have, at a minimum, clear and convincing evidence for cash associated with criminal activity and requires a beyond a reasonable doubt standard for forfeiting real prop- Proceeds Returned erty. Furthermore, when an innocent person with an interest in the property seeks to to State protect that interest, the burden is on the government to show that the owner knew FY 2000 $29,532,158 about the property's illegal use. Law enforcement in California keeps 65 percent of all revenues generated through civil forfeiture. FY 2001 $32,530,454 FY 2002 $26,435,779 However, the behavior of law enforcement officials tells a different tale. Given that California places greater limits on state and local governments in forfeiting property, FY 2003 $24,259,920 it should not be surprising that it aggressively participates in equitable sharing with FY 2004 $30,972,798 the federal government, collecting an astonishing $305 million in an eight-year pe- riod from 2000 to 2008. In 2000, California legislators voted to forbid state and local FY 2005 $26,389,562 agencies from using the federal equitable sharing loophole except in limited circum- FY 2006 $41,901,452 stances, but then-Governor Gray Davis vetoed the measure. FY 2007 $42,226,537 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2008 $51,699,292 Total $305,947,952 Total Assets Assets Forfeited per Average $33,994,217 Forfeited Law Enforcement Agency per Year 1993 $115,223,229 $309,383 1997 $93,636,748 $178,040 2000 $61,450,257 $153,793 2003 $42,460,049 $109,029 FrEEdoM of inForMation data reports of forfeitures by county; types and number of law enforcement agencies unclear Total amount of assets Total number of assets 2002 $25,565,686.24 3,029 2003 $26,589,893.34 3,345 2004 $22,459,345.80 3,512 2005 $19,866,809.89 3,685 2006 $25,582,483.48 3,877 2007 $27,603,821.74 4,062 2008 $25,548,227.54 4,490 Total $173,236,268.03 26,000 49 Average $24,748,038.29 3,714 per Year COLORADO Forfeiture Law Grade C State Law Evasion Grade FINAL GRADE FORFEITURE LAW Colorado reformed its civil asset forfeiture laws in 2005, but room for improvement EquitablE Sharing remains. For the government to forfeit your property now, it must have clear and ProcEEdS from the aSSEtS convincing evidence that the property is related to criminal activity and thus subject ForFEiturE Fund (aFF) to forfeiture. Thankfully, innocent owners are not required to prove their innocence in Colorado. Instead, the government bears the burden of showing that the owner Proceeds Returned participated in the alleged criminal activity. Law enforcement keeps 50 percent of all to State funds generated through civil forfeiture. FY 2000 $639,942 Prior to the reforms passed in 2005, Colorado law enforcement could take property FY 2001 $5,013,103 when it was merely more likely than not that it had been used in criminal activity, FY 2002 $1,348,887 innocent owners had to prove their own innocence and law enforcement reaped 100 percent of the forfeiture windfall. While there remains work to be done, the reforms FY 2003 $1,288,769 have clearly improved the forfeiture landscape in Colorado. FY 2004 $1,712,673 FY 2005 $2,944,760 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2006 $5,159,744 FY 2007 $4,799,505 Total Assets Assets Forfeited per FY 2008 $4,211,955 Forfeited Law Enforcement Agency Total $27,119,338 1993 $2,577,295 $35,938 Average $3,013,260 1997 $4,127,549 $15,989 per Year 2000 $2,408,996 $10,326 2003 $2,555,456 $9,975 FrEEdoM of inForMation data reports of forfeitures from some judicial districts, some police departments, and some sheriff's departments All Law Enforcement 2000 Task Forces Total Agencies Forfeitures $11,678,627 $277,920 $11,956,547 50 CONNECTICUT Forfeiture Law Grade C+ State Law Evasion Grade FINAL GRADE FORFEITURE LAW Connecticut's civil forfeiture laws are not as bad as the laws in many states. For the EquitablE Sharing government to forfeit your property, it must have clear and convincing evidence that ProcEEdS from the aSSEtS the property in question is related to criminal activity and thus subject to forfeiture. ForFEiturE Fund (aFF) However, once property has been seized, innocent owners have the burden of prov- ing that they did not know the property was being used in connection with criminal Proceeds Returned activity. Connecticut law enforcement keeps 60 percent of the proceeds from civil to State forfeiture. There is no requirement that the state collect data on forfeitures or pro- FY 2000 $704,026 ceeds from them. FY 2001 $1,441,489 These laws, however, can still lead to abuse. For instance, in 2001, Debbie Kerpen FY 2002 $352,271 had $2.76 million, her cars, horse trailers, boat and tractor seized because of her al- leged role as head of a call girl service—all without a single charge being filed against FY 2003 $1,261,087 her. Unfortunately for Debbie, as ACLU President Nadine Strossen put it, "She's FY 2004 $1,350,653 facing a greater penalty than she would under any applicable criminal law, without any of the constitutional protections."1 FY 2005 $2,786,594 FY 2006 $1,365,596 1 Pagnozzi, A. (2001, July 24). 'Legal' excuse to steal. Hartford Courant, p. A3. FY 2007 $2,014,681 FY 2008 $1,890,925 ForFEiturES as rEPortEd to lEMaS (drug-related only) Total $13,167,322 Average Total Assets Assets Forfeited per $1,463,036 per Year Forfeited Law Enforcement Agency 1993 $2,696,489 $27,452 1997 $2,797,387 $21,096 2000 $2,971,449 $27,094 2003 $2,564,780 $27,208 FrEEdoM of inForMation data no data available; not required to collect 51 DELAWARE Forfeiture Law Grade C State Law Evasion Grade FINAL GRADE FORFEITURE LAW Delaware has terrible civil forfeiture law, scoring an F on the law grade. The state's EquitablE Sharing final grade is pulled up to a C only by limited use of equitable sharing (an evasion ProcEEdS from the aSSEtS grade of A) to date. In Delaware, the government only needs to show probable ForFEiturE Fund (aFF) cause to forfeit property. If an innocent owner objects, the owner has the burden of showing that the property was wrongfully seized or not subject to forfeiture. These Proceeds Returned problems are compounded by the fact that law enforcement in Delaware keeps 100 to State percent of the revenues generated by civil forfeitures, creating a perverse incentive to FY 2000 $449,374 seize as much property as possible. Fortunately for Delaware citizens, law enforce- ment in the state does not seem to have used forfeiture as aggressively as the law per- FY 2001 $461,175 mits. It is hard to know the extent of forfeiture in Delaware, though, because there is FY 2002 $422,941 no provision under state law that requires data to be collected or reported. FY 2003 $173,222 FY 2004 $606,678 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2005 $791,700 FY 2006 $130,302 Total Assets Assets Forfeited per FY 2007 $478,764 Forfeited Law Enforcement Agency FY 2008 $813,464 1993 $1,514,806 $73,837 Total $4,327,620 1997 $1,277,969 $37,118 Average 2000 $1,114,772 $39,792 $480,847 per Year 2003 $1,938,634 $60,347 FrEEdoM of inForMation data no data available; not required to collect 52 FLORIDA Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW Florida's civil forfeiture laws provide some protections for property owners but also EquitablE Sharing give law enforcement a large incentive to use forfeiture—and agencies appear to do ProcEEdS from the aSSEtS just that. The government must prove by clear and convincing evidence that the ForFEiturE Fund (aFF) property was related to criminal activity and thus can be forfeited, a higher standard than most states but still less than the beyond a reasonable doubt standard required Proceeds Returned for a criminal conviction. Also, in Florida owners are not presumed guilty; instead, to State the government bears the burden in an innocent owner defense. FY 2000 $16,004,502 Unfortunately, though, law enforcement in Florida still receives 85 percent of the FY 2001 $48,910,328 funds generated from civil forfeiture. As a result, Florida law enforcement makes FY 2002 $15,271,472 substantial use of civil forfeiture at the state level, just as it does through equitable sharing. In a mere three-year period (2001-2003), the state took in more than $100 FY 2003 $21,911,302 million in forfeiture, and Florida law enforcement received anywhere from $16 mil- FY 2004 $15,632,236 lion to $48 million per year in the 2000s through equitable sharing. (These counts may overlap, as it is not clear whether Florida included equitable sharing revenue in FY 2005 $18,309,636 its response to information requests.) FY 2006 $16,006,014 This expansive use of civil forfeiture has not only benefitted law enforcement insti- FY 2007 $29,578,608 tutionally, it has also led to personal gain. In 2003, for instance, it was reported that FY 2008 $34,198,199 top Tampa Bay police brass were keeping seized cars for their own use. The seized fleet consisted of some 42 cars, including a Lincoln Navigator, a Ford Expedition, Total $215,822,297 and, Police Chief Bennie Holder's favorite, a $38,000 Chevy Tahoe.1 Average $23,980,255 1 Blumner, R. E. (2003, August 17). Police too addicted to lure of easy money. St. Petersburg per Year Times, p. 7D. ForFEiturES as rEPortEd to lEMaS (drug-related only) Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $59,720,558 $264,940 1997 $64,546,249 $203,174 2000 $102,430,563 $370,343 2003 $82,355,593 $262,612 FrEEdoM of inForMation data reports of forfeitures from all law enforcement agencies Year Forfeitures FY 2001 $42,203,824 FY 2002 $32,903,944 53 FY 2003 $29,090,576 Total $104,198,344 GEORGIA Forfeiture Law Grade D- State Law Evasion Grade FINAL GRADE FORFEITURE LAW Georgia has terrible civil forfeiture laws and uses equitable sharing extensively. EquitablE Sharing Under state law, depending on the property, the government need only establish ProcEEdS from the aSSEtS probable cause or a preponderance of the evidence that the property was connected ForFEiturE Fund (aFF) to illegal activity to forfeit it. You bear the burden of showing that the property is not derived from illegal activity or that you are an innocent owner. Even worse, law Proceeds Returned enforcement keeps 100 percent of the proceeds from any sales of seized property, to State which creates a strong incentive for law enforcement to seize property even in situa- FY 2000 $13,997,177 tions where it may not be warranted. And public oversight is limited: In response to requests, Georgia provided only one year of forfeiture data, for 2001. FY 2001 $11,476,049 FY 2002 $10,578,412 These broad laws have led officials to abuse forfeiture—including for personal gain. One sheriff in Georgia, for instance, used the funds raised through forfeiture FY 2003 $10,113,910 to purchase a $90,000 sports car, supposedly to advertise an anti-drug program. FY 2004 $10,544,040 In 2008, a grand jury was tasked with trying to figure out if that expenditure was "appropriate."1 FY 2005 $13,852,774 FY 2006 $20,266,682 1 The Sheriff 's Stash. (2008, July 12). The Economist, 388(8588), p. 42. FY 2007 $23,866,060 FY 2008 $15,878,429 ForFEiturES as rEPortEd to lEMaS (drug-related only) Total $130,573,533 Average $14,508,170 Total Assets Assets Forfeited per per Year Forfeited Law Enforcement Agency 1993 $7,856,684 $48,937 1997 $26,022,402 $43,966 2000 $20,767,039 $37,996 2003 $38,330,861 $91,459 FrEEdoM of inForMation data reports of forfeitures from judicial circuits 2001 Currency Property Total Forfeitures $7,216,687 $888,732 $8,105,419 54 HAWAII Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW Hawaii's civil asset forfeiture laws are in need of serious reform. The state may for- EquitablE Sharing feit your property by showing by a preponderance of the evidence that the property ProcEEdS from the aSSEtS was used in a crime. Unfortunately, if you are an innocent owner and believe your ForFEiturE Fund (aFF) property was wrongly seized, you bear the burden of proof. Law enforcement has a strong incentive to seize property, as they receive 100 percent of the funds raised Proceeds Returned through civil forfeiture. to State FY 2000 $1,207,271 FY 2001 $607,098 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2002 $2,052,050 FY 2003 $2,038,594 Total Assets Assets Forfeited per FY 2004 $1,802,294 Forfeited Law Enforcement Agency FY 2005 $1,657,680 1993 $4,091,284 $1,007,199 FY 2006 $3,345,770 1997 $1,616,491 $236,675 FY 2007 $2,808,610 2000 $2,067,879 $515,824 FY 2008 $1,626,211 2003 $2,557,282 $618,159 Total $17,145,578 Average $1,905,064 FrEEdoM of inForMation data per Year reports on forfeitures by seizing agency Currency Vehicles Other Total 2001 $450,945 $536,040 $207,033 $1,194,018 2002 $645,537 $487,147 $876,188 $2,008,872 2003 $1,044,944 $575,675 $286,000 $1,906,619 2004 $737,668 $457,792 $461,625 $1,657,085 2005 $414,395 $332,230 $316,627 $1,063,252 2006 $698,035 $460,855 $334,709 $1,493,599 2007 $636,598 $468,290 $300,396 $1,405,284 Total $4,628,122 $3,318,029 $2,252,578 $10,728,729 Average per $661,160 $474,004 $397,511 $1,532,676 Year 55 IDAHO Forfeiture Law Grade C State Law Evasion Grade FINAL GRADE FORFEITURE LAW Based on limited data, while Idaho appears to only modestly pursue forfeitures EquitablE Sharing against property owners, its civil forfeiture laws still put the property of ordinary ProcEEdS from the aSSEtS citizens at risk. To forfeit your property, the state only needs to show that it was ForFEiturE Fund (aFF) more likely than not that your property was used in some criminal activity—the legal standard of preponderance of the evidence. To recover seized property, an innocent Proceeds Returned owner bears the burden of proving his innocence. Moreover, law enforcement in to State Idaho reaps all of the rewards of civil forfeitures—they keep 100 percent of all funds FY 2000 $25,770 and face no requirement to collect or report data on forfeiture use and proceeds. FY 2001 $60,688 FY 2002 $481,322 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2003 $193,361 FY 2004 $1,568,537 Total Assets Assets Forfeited per FY 2005 $299,441 Forfeited Law Enforcement Agency FY 2006 $228,848 1993 $194,288 $13,503 FY 2007 $343,308 1997 $543,143 $4,178 FY 2008 $175,352 2000 $485,323 $4,291 Total $3,376,627 2003 $2,209,870 $10,634 Average $375,181 per Year FrEEdoM of inForMation data no data available; not required to collect 56 ILLINOIS Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW Illinois has burdensome civil forfeiture laws for property owners, and these laws EquitablE Sharing provide the bulk of forfeiture proceeds to law enforcement. The state need only ProcEEdS from the aSSEtS show probable cause to forfeit your property. If you believe your property has been ForFEiturE Fund (aFF) wrongly seized, you bear the burden of proving your innocence. Proceeds Returned Moreover, law enforcement keeps 90 percent the proceeds for any sales of seized to State property, which creates a strong incentive for law enforcement to police for profit. FY 2000 $9,754,782 Despite these broad laws, there is no requirement in Illinois that law enforcement account for forfeited currency and property, so we know little about its use under FY 2001 $8,386,258 state law. We do know law enforcement in Illinois takes great advantage of federal FY 2002 $6,618,603 equitable sharing, receiving back nearly $88 million from 2000 to 2008. FY 2003 $7,284,801 FY 2004 $8,529,033 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2005 $8,004,118 FY 2006 $12,102,313 Total Assets Assets Forfeited per FY 2007 $13,460,269 Forfeited Law Enforcement Agency FY 2008 $13,761,071 1993 $6,904,161 $24,117 Total $87,901,248 1997 $33,010,838 $31,912 Average 2000 $22,185,455 $24,644 $9,766,805 per Year 2003 $28,153,269 $30,574 FrEEdoM of inForMation data no data available; not required to collect 57 INDIANA Forfeiture Law Grade C+ State Law Evasion Grade FINAL GRADE FORFEITURE LAW Indiana has some of the better civil forfeiture laws in the country, at least with regard EquitablE Sharing to the profit incentive. Unfortunately, to forfeit your property, the government only ProcEEdS from the aSSEtS needs to show that it was more likely than not that your property was related to a ForFEiturE Fund (aFF) crime and thus is forfeitable—the legal standard of preponderance of the evidence, lower than the beyond a reasonable doubt standard required for a criminal convic- Proceeds Returned tion. But law enforcement in Indiana does not receive any of the funds gained to State through civil forfeiture, which keeps the focus of law enforcement on preventing FY 2000 $2,640,559 crime rather than raising funds. After deducting law enforcement costs for the pros- ecution of civil forfeitures, all forfeiture revenue is sent either to the general fund of FY 2001 $2,102,094 the state or the state's education fund. Indiana does participate in equitable sharing FY 2002 $2,224,005 with the federal government, averaging more than $2.6 million per year in the 2000s. FY 2003 $2,140,236 FY 2004 $2,249,053 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2005 $2,563,570 FY 2006 $2,781,017 Total Assets Assets Forfeited per FY 2007 $2,736,058 Forfeited Law Enforcement Agency FY 2008 $4,322,001 1993 $5,136,967 $45,934 Total $23,758,593 1997 $41,009,686 $69,382 Average $2,639,844 2000 $3,629,890 $7,629 per Year 2003 $3,287,229 $7,716 FrEEdoM of inForMation data no data available; not required to collect 58 IOWA Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW Iowa's civil forfeiture laws place a heavy burden on property owners. Under state EquitablE Sharing law, the prosecutor must only show that the property is related to criminal activ- ProcEEdS from the aSSEtS ity and can be forfeited by a preponderance of the evidence. Once the prosecutor ForFEiturE Fund (aFF) meets that burden, the burden is on the property owner to show his innocence, or in other words, that he did not know and could not have reasonably known of the con- Proceeds Returned duct or that he acted reasonably to prevent the conduct giving rise to the forfeiture. to State Moreover, law enforcement receives 100 percent of the value of any property seized FY 2000 $725,201 under Iowa forfeiture law, and law enforcement agencies are not required to collect or report their forfeiture proceeds. FY 2001 $385,477 FY 2002 $454,855 FY 2003 $3,606,690 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2004 $3,429,906 FY 2005 $1,497,974 Total Assets Assets Forfeited per Forfeited Law Enforcement Agency FY 2006 $2,261,349 FY 2007 $1,770,877 1993 $4,328,098 $20,830 FY 2008 $1,577,120 1997 $3,068,909 $6,574 Total $15,709,449 2000 $3,136,596 $6,862 2003 $2,463,424 $5,206 Average $1,745,494 per Year FrEEdoM of inForMation data no data available; not required to collect 59 KANSAS Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW Kansas civil forfeiture laws place an excessive burden on property owners while also EquitablE Sharing providing a strong profit incentive for law enforcement agencies. The government ProcEEdS from the aSSEtS need only show by a preponderance of the evidence that the property meets the ForFEiturE Fund (aFF) forfeiture definition. Once that burden is met, a property owner bears the burden of showing that his interest in the property is not forfeitable. Moreover, Kansas law Proceeds Returned enforcement keeps 100 percent of the proceeds from the sale of forfeited property to State after paying reasonable attorney's fees. Finally, even though Kansas does require FY 2000 $1,690,336 that forfeiture data be collected, the government did not respond to requests for the information for this report. FY 2001 $3,137,162 FY 2002 $1,442,719 FY 2003 $1,992,796 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2004 $5,039,777 FY 2005 $3,279,147 Total Assets Assets Forfeited per FY 2006 $1,805,375 Forfeited Law Enforcement Agency FY 2007 $2,091,681 1993 $2,182,590 $30,117 FY 2008 $2,874,235 1997 $7,676,368 $21,999 Total $23,353,228 2000 $3,274,621 $10,187 Average 2003 $4,873,528 $16,356 $2,594,803 per Year FrEEdoM of inForMation data no data available; required to collect, but did not respond to request 60 KENTUCKY Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW Kentucky civil forfeiture law affords inadequate protection to property owners. The EquitablE Sharing state must only show that the property is related to criminal activity and can be ProcEEdS from the aSSEtS forfeited by a preponderance of the evidence, a standard significantly lower than that ForFEiturE Fund (aFF) required for criminal guilt. And property owners have the burden of proof in an innocent owner claim unless it is real property, such as a home or land. Moreover, Proceeds Returned law enforcement agencies receive 100 percent of the value of any forfeited assets, to State creating an incentive for law enforcement to focus on forfeiture rather than crime FY 2000 $2,497,441 prevention. FY 2001 $4,938,459 The perverse incentives of profit-oriented civil forfeiture law are exemplified in the FY 2002 $2,691,400 1996 scandal in Paducah, Ky., where $66,000 was discovered at the headquarters of the Western Area Narcotics Task Force (WANT). Investigators found that "the task FY 2003 $2,233,489 force had seized large amounts of money and then dispensed it freely, unconstrained FY 2004 $3,886,825 by audits, reporting requirements, or the task force's mission."1 With such a large profit motive, "WANT made asset seizures a priority, mandating expected forfeiture FY 2005 $3,441,424 growth rates. But WANT met its quotas with much more zeal than care. The police FY 2006 $5,621,490 chief estimated that 60 percent of the money found in WANT headquarters will be returned to the owners because it was not properly seized."2 As this report found, FY 2007 $7,562,868 law enforcement officials are now required to collect forfeiture data in Kentucky, but FY 2008 $5,865,895 the information provided was unreliable. Total $38,739,291 1 Blumenson, E., & Nilsen, E. (1998). Policing for profit: The drug war's hidden economic agenda. Average University of Chicago Law Review, 65(1), 35-114. $4,304,366 2 Id. per Year ForFEiturES as rEPortEd to lEMaS (drug-related only) Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $4,504,971 $53,098 1997 $3,110,106 $9,858 2000 $3,861,882 $12,338 2003 $3,334,152 $12,388 FrEEdoM of inForMation data no data available; required to collect, but data Provided Were unclear and unreliable 61 LOUISIANA Forfeiture Law Grade C- State Law Evasion Grade FINAL GRADE FORFEITURE LAW In Louisiana, protection against wrongful forfeiture of assets by police is inadequate. EquitablE Sharing The state may forfeit your property by showing by a preponderance of evidence ProcEEdS from the aSSEtS that the property is related to a crime and thus forfeitable. A property owner must ForFEiturE Fund (aFF) then show that he is innocent—that he did not know and could not have reasonably known of the conduct or that he acted reasonably to prevent the conduct giving rise Proceeds Returned to the forfeiture. to State FY 2000 $1,993,010 Law enforcement is entitled to 80 percent of the value of property they seize in civil forfeiture actions. Incredibly, the remaining 20 percent flows to the criminal court FY 2001 $1,415,443 fund. This would seem to blatantly violate the due process clause of the U.S. Con- FY 2002 $930,075 stitution. In Tumey v. Ohio,1 the U.S. Supreme Court struck down a statutory scheme where a mayor, also sitting as a judge, received a share of the proceeds collected in FY 2003 $2,158,907 court. FY 2004 $1,501,057 Moreover, Louisiana officials are required to collect data on the use of forfeiture but FY 2005 $1,670,434 did not respond to a request for that information. FY 2006 $2,149,234 FY 2007 $2,796,426 1 Tumey v. Ohio, 273 U.S. 510 (1927). FY 2008 $2,772,516 Total $17,387,102 ForFEiturES as rEPortEd to lEMaS (drug-related only) Average $1,931,900 per Year Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $8,657,777 $68,334 1997 $8,601,094 $25,080 2000 $6,866,313 $21,237 2003 $12,212,862 $50,264 FrEEdoM of inForMation data no data available; required to collect, but did not respond to request 62 MAINE Forfeiture Law Grade A- State Law Evasion Grade FINAL GRADE FORFEITURE LAW Maine affords property owners some of the better protections against wrongful EquitablE Sharing civil forfeiture in the country. The government must show by a preponderance ProcEEdS from the aSSEtS of evidence that the property is related to a crime and thus can be forfeited. This ForFEiturE Fund (aFF) standard, however, is still less than the beyond a reasonable doubt standard required for a criminal conviction. Unfortunately, the property owner bears the burden in Proceeds Returned an innocent owner claim, unless the property is real property such as a home. Most to State importantly, though, Maine forfeiture law avoids the most troubling aspect of many FY 2000 $289,012 state forfeiture regimes: a monetary incentive to police and prosecute for profit. In Maine, all forfeiture funds go directly to the state's general fund. FY 2001 $249,073 FY 2002 $204,420 FY 2003 $396,817 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2004 $220,415 FY 2005 $521,857 Total Assets Assets Forfeited per Forfeited Law Enforcement Agency FY 2006 $350,624 1993 $347,051 $13,917 FY 2007 $1,025,788 1997 $209,856 $1,972 FY 2008 $345,699 2000 $237,047 $1,772 Total $3,603,705 2003 $685,057 $4,572 Average $400,412 per Year FrEEdoM of inForMation data reports of forfeitures based on case numbers; types and number of law enforcement agencies unclear Currency Firearms Real Estate Vehicles Total 1999 $1,022,587 $900 $329,143 $28,003 $1,380,633 2000 $361,135 $150 $671,534 $17,600 $1,050,419 2001 $338,247 $1,190 $145,043 $52,095 $536,575 2002 $487,599 $0 $0 $53,905 $541,504 2003 $683,057 $0 $14,000 $40,200 $737,257 Total $2,892,625 $2,240 $1,159,720 $191,803 $4,246,388 Average $578,525 $448 $231,944 $38,361 $849,278 per Year 63 MARYLAND Forfeiture Law Grade C+ State Law Evasion Grade FINAL GRADE FORFEITURE LAW Procedurally, Maryland does not afford strong protections to property owners swept EquitablE Sharing up in civil forfeiture, but it does eliminate the profit incentive. Property can be for- ProcEEdS from the aSSEtS feited under a preponderance of the evidence standard; the government must merely ForFEiturE Fund (aFF) prove it is more likely than not that the property was involved in a crime, a far lower standard than beyond a reasonable doubt. Property owners are effectively "guilty Proceeds Returned until proven innocent": To contest a seizure, the property owner must prove that the to State property was wrongfully seized or that the owner did not have actual knowledge of FY 2000 $3,955,415 the conduct. But Maryland civil forfeiture law, unlike most other states, avoids creat- ing a profit incentive for local law enforcement. All proceeds from civil forfeiture FY 2001 $3,063,429 flow to the state general fund or the local governing body. FY 2002 $4,626,498 With the profit incentive eliminated under state law, Maryland law enforcement can FY 2003 $7,424,604 and does still obtain forfeited property by working with federal authorities through FY 2004 $6,159,725 adoption and equitable sharing. Despite the mandate that forfeiture proceeds go the general fund, state law enforcement, working with their federal partners, re- FY 2005 $5,635,733 ceived more than $50 million in forfeiture revenue from 2000 to 2008. This end-run FY 2006 $6,384,843 around state forfeiture law was challenged in court, but the Maryland Court of Ap- peals ratified the practice of equitable sharing even when law enforcement failed to FY 2007 $8,216,398 obtain a court order permitting the use of the loophole.1 FY 2008 $8,052,287 Total $53,518,932 1 DeSantis v. State, 866 A.2d 143 (Md. 2005). Average $5,946,548 per Year ForFEiturES as rEPortEd to lEMaS (drug-related only) Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $5,418,380 $68,048 1997 $11,342,965 $103,778 2000 $8,541,208 $141,878 2003 $8,792,725 $58,660 FrEEdoM of inForMation data no data available; not required to collect 64 MASSACHUSETTS Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW Massachusetts has a terrible civil forfeiture regime. Under Massachusetts civil for- EquitablE Sharing feiture law, law enforcement need only show probable cause that your property was ProcEEdS from the aSSEtS related to a crime to forfeit it. You are then in effect guilty until proven innocent, as ForFEiturE Fund (aFF) you must shoulder the burden of proving that the property was not forfeitable or that you did not know and should not have known about the conduct giving rise to the Proceeds Returned forfeiture. Further, law enforcement keeps 100 percent of all forfeited property. The to State receipts are split: half to the prosecutor's office and half to the local or state police. FY 2000 $2,849,444 Massachusetts is required to collect forfeiture data, but in response to requests, the state provided data only for 2000 to 2003. FY 2001 $2,416,212 FY 2002 $2,614,071 FY 2003 $2,012,439 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2004 $4,354,656 FY 2005 $4,563,453 Total Assets Assets Forfeited per FY 2006 $2,527,410 Forfeited Law Enforcement Agency FY 2007 $3,921,974 1993 $7,037,778 $51,909 FY 2008 $5,249,599 1997 $30,557,661 $100,927 Total $30,509,258 2000 $3,846,418 $12,722 Average 2003 $5,018,063 $18,293 $3,389,918 per Year FrEEdoM of inForMation data Reports of forfeitures by district attorneys offices Year Forfeitures 2000 $3,337,462 2001 $5,255,308 2002 $4,153,936 2003 $4,048,912 Total $16,795,619 65 MICHIGAN Forfeiture Law Grade D- State Law Evasion Grade FINAL GRADE FORFEITURE LAW Michigan has bad civil forfeiture laws—and law enforcement there uses equitable EquitablE Sharing sharing extensively. Michigan requires prosecuting attorneys to prove by a prepon- ProcEEdS from the aSSEtS derance of the evidence that the property is related to a crime and thus subject to ForFEiturE Fund (aFF) forfeiture. This standard is significantly lower than the beyond a reasonable doubt standard required to actually convict someone of criminal activity. However, owners Proceeds Returned in Michigan are presumed innocent; unlike in most states, the government bears the to State burden of establishing that the criminal activity was done with an owner's knowledge FY 2000 $4,514,721 or consent, implied or expressed. FY 2001 $7,536,367 On the other hand, law enforcement receives all proceeds of civil forfeiture to FY 2002 $4,792,256 enhance law enforcement efforts, creating an incentive to pursue forfeiture more vigorously than combating other criminal activity. As the numbers below indicate, FY 2003 $5,414,143 multi-jurisdictional task forces work extensively with district attorneys and police FY 2004 $4,616,839 departments to forfeit property, resulting in more than $149 million in total forfeiture revenue from 2001 to 2008. FY 2005 $13,494,514 FY 2006 $9,645,997 FY 2007 $8,551,255 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2008 $13,272,447 Total $71,838,539 Total Assets Assets Forfeited per Forfeited Law Enforcement Agency Average $7,982,060 per Year 1993 $12,567,115 $59,539 1997 $14,535,079 $23,065 2000 $22,398,134 $39,112 2003 $18,995,124 $38,059 FrEEdoM of inForMation data On Next Page 66 Michigan FrEEdoM of inForMation data reports of forfeitures from law enforcement agencies, task forces and district attorneys Police and Sheriff Task Forces District Attorneys Total 2001 Currency $5,750,076 $2,521,717 $539,549 $8,811,342 Personal Property $1,632,330 $177,885 $53,559 $1,863,774 Real Property $890,644 $294,585 $0 $1,185,229 Conveyances $559,649 $590,953 $92,550 $1,243,152 Total $8,832,699 $3,585,140 $685,658 $13,103,497 2002 Currency $7,007,821 $3,497,601 $325,419 $10,830,841 Personal Property $1,249,053 $239,467 $475 $1,488,995 Real Property $686,396 $400,740 $54,000 $1,141,136 Conveyances $1,058,946 $539,575 $18,050 $1,616,571 Total $10,002,216 $4,677,383 $397,944 $15,077,543 2003 Currency $11,572,489 $3,800,983 $179,160 $15,552,632 Personal Property $1,224,164 $185,111 $38,185 $1,447,460 Real Property $722,227 $876,196 $65,000 $1,663,423 Conveyances $1,071,210 $694,159 $58,605 $1,823,974 Total $14,590,090 $5,556,449 $340,950 $20,487,489 2004 Currency $10,450,632 $2,522,419 $479,154 $13,452,205 Personal Property $343,933 $366,302 $99,495 $809,730 Real Property $1,041,665 $303,684 $127,027 $1,472,376 Conveyances $1,250,040 $736,539 $52,255 $2,038,834 Total $13,086,270 $3,928,944 $757,931 $17,773,145 2005 Currency $12,564,861 $3,632,905 $272,902 $16,470,668 Personal Property $241,687 $296,456 $46,033 $584,176 Real Property $274,018 $409,389 $40,000 $723,407 Conveyances $4,951,493 $768,396 $272,902 $5,992,791 Total $18,032,059 $5,107,146 $631,837 $23,771,042 2006 Currency $9,814,586 $3,228,727 $264,364 $13,307,677 Personal Property $272,864 $620,179 $117,501 $1,010,544 Real Property $307,465 $559,298 $45,126 $911,889 Conveyances $1,975,297 $806,535 $26,580 $2,808,412 Total $12,370,212 $5,214,739 $453,571 $18,038,522 2007 Currency $13,594,846 $3,703,000 $228,346 $17,526,192 Personal Property $256,096 $671,016 $86,969 $1,023,081 Real Property $246,535 $531,298 $0 $777,833 Conveyances $1,852,968 $835,730 $29,040 $2,717,738 Total $15,959,445 $5,741,044 $344,355 $22,044,844 2008 Currency $9,798,402 $4,793,565 $907 $14,592,874 Personal Property $311,675 $555,436 $0 $867,111 Real Property $150,500 $406,109 $95,394 $652,003 Conveyances $2,176,200 $749,216 $2,000 $2,927,416 Total $12,436,777 $6,504,326 $98,301 $19,039,404 Grand Total $105,309,768 $40,315,171 $3,710,547 $149,335,486 67 Grand Average per Year $13,163,721 $5,039,396 $463,818 $18,686,936 MINNESOTA Forfeiture Law Grade C State Law Evasion Grade FINAL GRADE FORFEITURE LAW Minnesota law provides only slight protection for property owners against wrong- EquitablE Sharing ful forfeitures, as its poor law grade of D shows. The state's somewhat higher final ProcEEdS from the aSSEtS grade reflects limited use of equitable sharing to date (an evasion grade of B). Al- ForFEiturE Fund (aFF) though state statutes require that the government must show by clear and convincing evidence that the property is connected to drug trafficking and thus forfeitable, this Proceeds Returned burden is often easily met. This is because, in practice, few cases are tried. When to State they are, the owner is presumed guilty, bearing the burden of showing that he is an FY 2000 $1,046,751 innocent owner.1 Law enforcement also receives as much as 90 percent of the value of forfeited property,2 thus providing a profit incentive to law enforcement to focus FY 2001 $1,348,423 on civil forfeitures instead of other law enforcement duties. Nevertheless, as the FY 2002 $1,810,187 numbers below indicate, Minnesota law enforcement has used forfeiture relatively modestly in recent years. FY 2003 $1,133,648 FY 2004 $1,369,123 However, this changed in 2009. Then, the consequences of Minnesota's lax forfei- ture laws were on full display with a scandal involving the state's Metro Gang Strike FY 2005 $1,930,861 Force, accused of using its forfeiture power to improperly seize property. In some FY 2006 $1,498,393 instances, officers have been alleged to keep the property for their own personal use.3 FY 2007 $1,960,561 1 The statute does not refer to an innocent owner defense. But in Blanche v. 1995 Pontiac Grand Prix, FY 2008 $2,436,864 599 N.W.2d 191 (1999), the court permits an innocent owner defense to be raised without establishing a burden of proof. Total $14,534,811 2 Specifically, 70 percent of the proceeds from common forfeitures go to the law enforcement agency, 20 percent go to the office of the prosecutor, and 10 percent go to the general governmental fund. Minn. Average $1,614,979 Stat. § 609.5315. per Year 3 Lore, M. (2009, September 18). Criminal defense attorneys seek more protections in forfeiture cases. Retrieved September 25, 2009, from http://www.minnlawyer.com/article.cfm/2009/09/21/Crimi- nal-defense-attorneys-seek-more-protections-in-forfeiture-cases. ForFEiturES as rEPortEd to lEMaS (drug-related only) Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $3,313,487 $20,000 1997 $13,088,560 $27,291 2000 $2,039,003 $4,500 2003 $4,564,594 $8,665 FrEEdoM of inForMation data On Next Page 68 MinnESota FrEEdoM of inForMation data reports of forfeitures from law enforcement agencies and task forces All Law Enforcement Agencies 1996 $1,948,424 1997 $1,913,906 1998 $1,208,821 1999 $1,488,157 2000 $501,115 2001 $960,081 2002 $684,454 2003 $1,030,966 2004 $1,312,165 2005 $1,443,026 2006 $3,942,930 2007 $4,318,651 2008 $3,500,434 Total $24,253,130 Average $1,865,625 per Year 69 MISSISSIPPI Forfeiture Law Grade D+ State Law Evasion Grade FINAL GRADE FORFEITURE LAW Mississippi provides minimal protections for property owners from civil forfeiture EquitablE Sharing abuse. The state only needs to prove by a preponderance of the evidence that the ProcEEdS from the aSSEtS property is related to a crime and thus forfeitable, a standard lower than the beyond ForFEiturE Fund (aFF) a reasonable doubt required for a criminal conviction. Moreover, the burden is on the property owner to prove his innocence, effectively making him guilty until proven Proceeds Returned innocent. Law enforcement collects 80 percent of the proceeds from any seizures, to State thus ensuring a profit motive for law enforcement to pursue forfeitures. There is no FY 2000 $1,310,763 legal requirement that law enforcement collect or report data on forfeiture use or proceeds. FY 2001 $1,227,097 FY 2002 $1,026,045 Some law enforcement agencies in Mississippi seem to have become reliant on such funds to operate. The Hattiesburg Police Department, for example, took in around FY 2003 $1,546,593 $1.4 million over the past six years.1 Hattiesburg City Council President Kim Brad- FY 2004 $4,278,744 ley admits that "forfeiture funds are a tremendous help, especially with the recent state budget cuts." In the current recession, law enforcement could feel increased FY 2005 $3,242,740 pressure to bring in forfeiture proceeds to make up for declining state revenue. FY 2006 $5,526,173 FY 2007 $3,254,022 FY 2008 $2,696,655 1 Butler, E. (2009, January 11). HPD gets $1.4M in forfeiture revenue. Hattiesburg American, npn. Total $24,108,832 Average $2,678,759 ForFEiturES as rEPortEd to lEMaS (drug-related only) per Year Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $2,983,591 $36,175 1997 $13,872,939 $41,579 2000 $4,801,456 $16,360 2003 $6,699,229 $39,677 FrEEdoM of inForMation data no data available; not required to collect 70 MISSOURI Forfeiture Law Grade C+ State Law Evasion Grade FINAL GRADE FORFEITURE LAW Missouri law makes it very easy for law enforcement to forfeit property, but it strictly EquitablE Sharing limits agencies' ability to profit from forfeitures under state law. The weakest part of Mis- ProcEEdS from the aSSEtS souri's law is requiring the government to show only reasonable cause to believe property ForFEiturE Fund (aFF) is related to a crime to forfeit it. That is the lowest legal standard, akin to the probable cause required for a search warrant, and much lower than beyond a reasonable doubt, Proceeds Returned the standard the government must meet for a criminal conviction. Moreover, owners to State are presumed guilty: When property is seized and an innocent owner has an interest in the property, the owner must intervene in the forfeiture proceedings and show he did not FY 2000 $8,179,698 have actual knowledge of the criminal activity. However, Missouri is one of only eight FY 2001 $4,979,750 states where law enforcement receives none of the funds from forfeiture; all accrue to the local education system. This is a significant protection for owners, but the data from FY 2002 $4,079,649 Missouri suggests that law enforcement still engages in forfeiture, seizing more than $34 FY 2003 $4,781,175 million from 2001 to 2008. FY 2004 $6,024,911 A key incentive to continued use of forfeiture in Missouri may be federal equitable shar- ing. After an investigative report in the Kansas City Star, Missouri lawmakers were awak- FY 2005 $8,546,529 ened to a major problem that plagues other states that limit the ability of law enforce- FY 2006 $9,479,687 ment to profit from forfeiture: federal adoption of forfeiture proceedings and equitable sharing arrangements. By 1999, more than 85 percent of forfeited property was funneled FY 2007 $10,667,509 through this loophole. FY 2008 $10,461,755 Total $67,200,663 ForFEiturES as rEPortEd to lEMaS (drug-related only) Average $7,466,740 per Year Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $6,756,915 $69,839 1997 $10,131,477 $15,070 2000 $7,852,960 $14,894 2003 $4,565,135 $6,973 FrEEdoM of inForMation data On Next Page 71 MiSSouri FrEEdoM of inForMation data reports of forfeitures from prosecuting attorneys and attorney general Transferred Disposition Transferred Pending Returned to Federal not Other Total to State Agency Reported 2001 $1,559,080 $1,100,845 $498,373 $225,921 $268,754 $300 $3,653,273 2002 $2,171,488 $1,038,313 $1,372,961 $232,848 $349,143 $1,802 $5,166,555 2003 $1,897,115 $720,269 $342,880 $210,340 $71,233 $23,089 $3,264,926 2004 $1,212 $893,546 $669,331 $45,273 $12,953 $112,467 $1,734,782 2005 $2,307,302 $386,285 $1,272,420 $71,225 $0 $1,653 $4,038,885 2006 $1,591,228 $664,158 $2,810,763 $83,038 $51,942 $14,446 $5,215,575 2007 $1,464,990 $674,253 $2,028,673 $74,461 $248,730 $13,914 $4,505,021 2008 $1,377,108 $179,582 $5,183,935 $58,532 $83,979 $0 $6,883,136 Total $12,369,523 $5,657,251 $14,179,336 $1,001,638 $1,086,734 $167,671 $34,462,153 Average $1,546,190 $707,156 $1,772,417 $125,205 $135,842 $20,959 $4,307,769 per Year 72 MONTANA Forfeiture Law Grade D+ State Law Evasion Grade FINAL GRADE FORFEITURE LAW Montana has terrible civil forfeiture laws. The state only requires probable cause EquitablE Sharing to forfeit property. This is the lowest standard of proof the government must meet ProcEEdS from the aSSEtS to prove your property is related to a crime. It is the same standard required for a ForFEiturE Fund (aFF) search warrant and far lower than the beyond a reasonable doubt standard required for a criminal conviction. Moreover, once Montana seizes your property, you are Proceeds Returned presumed guilty, and you bear the burden of proving that either the property was not to State forfeitable or that the conduct giving rise to the seizure was without your knowledge FY 2000 $251,243 or consent. Moreover, law enforcement receives 100 percent of the proceeds from forfeiture. FY 2001 $576,378 FY 2002 $205,696 News accounts reveal that almost half of some county prosecutors' salaries are paid by funds from forfeiture accounts. The Montana State Bar issued an ethics opinion FY 2003 $182,607 that found no conflict of interest despite an acknowledgement that the funds are FY 2004 $201,458 often used to hire deputy prosecutors that assist the county prosecutor.1 The exact amounts and how these funds are used are difficult to determine, however, because FY 2005 $422,760 there is no requirement that forfeiture data be reported. FY 2006 $487,171 In 2007, the Montana legislature considered reforming its civil forfeiture laws but FY 2007 $1,134,024 rejected a bill that would have eliminated the profit incentive that law enforcement FY 2008 $387,501 currently has. It would have also plugged the federal equitable sharing loophole that allows states to avoid state laws protecting property owners from wrongful forfeiture. Total $3,848,838 Average 1 State Bar of Montana. (n. d.). Ethics opinion 960827. Retrieved September 25, 2009, from http:// $427,649 per Year www.montanabar.org/displaycommon.cfm?an=1&subarticlenbr=131. ForFEiturES as rEPortEd to lEMaS (drug-related only) Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $893,729 $23,200 1997 $7,550,011 $34,879 2000 $1,373,458 $8,079 2003 $965,189 $7,349 FrEEdoM of inForMation data no data available; not required to collect 73 NEBRASKA Forfeiture Law Grade C State Law Evasion Grade FINAL GRADE FORFEITURE LAW EquitablE Sharing Nebraska has a very high standard—beyond a reasonable doubt—to forfeit prop- ProcEEdS from the aSSEtS erty. However, once the state establishes that the property is subject to forfeiture, ForFEiturE Fund (aFF) the burden shifts to the property owner to establish that he is an innocent owner. In Nebraska, law enforcement receives 75 percent of forfeiture proceeds. Proceeds Returned to State Given these limitations, Nebraska law enforcement only took in about $600,000 in FY 2000 $2,089,356 total forfeitures from 2001 to 2002. But Nebraska agencies take advantage of equi- table sharing arrangements. For example, an out-of-state driver crossing Nebraska FY 2001 $1,536,488 was stopped by law enforcement, and police found a small amount of marijuana but FY 2002 $826,487 later dropped the drug charges. The police took a suitcase with more than $40,000 in it and turned it over to a federal agent. The Nebraska Supreme Court found the FY 2003 $3,949,404 state courts had no jurisdiction over the money after the federal agents took posses- FY 2004 $3,358,978 sion, even though the initial seizure was conducted by state agents and any eventual receipts would be equitably shared with local law enforcement.1 FY 2005 $2,284,353 FY 2006 $5,348,456 FY 2007 $4,087,991 FY 2008 $4,929,203 1 Obad v. State, 766 N.W.2d 89 (Neb. 2009). Total $28,410,716 Average $3,156,746 ForFEiturES as rEPortEd to lEMaS (drug-related only) per Year Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $2,367,871 $81,561 1997 $11,725,158 $47,819 2000 $9,296,488 $41,309 2003 $1,362,393 $7,834 FrEEdoM of inForMation data reports of forfeitures by counties; types and number of law enforcement agencies unclear Total amount of assets, 2001-2002: $604,722 74 NEVADA Forfeiture Law Grade D+ State Law Evasion Grade FINAL GRADE FORFEITURE LAW Nevada forfeiture law provides paltry protection for property owners from wrongful EquitablE Sharing forfeitures. The government may seize your property and keep it upon a showing ProcEEdS from the aSSEtS of clear and convincing evidence, a higher standard than many states but still lower ForFEiturE Fund (aFF) than the criminal standard of beyond a reasonable doubt. But the burden falls on you to prove that you are an innocent owner by showing that the act giving rise to the Proceeds Returned forfeiture was done without your knowledge, consent or willful blindness. Further, to State law enforcement keeps 100 percent of the revenue raised from the sale of forfeited FY 2000 $717,857 property. Additionally, the revenue must be spent within the year, because any excess FY 2001 $1,208,744 more than $100,000 in a forfeiture account is given to local schools. This provision creates an incentive to rely on new forfeitures each year.1 Nevada law enforcement FY 2002 $2,327,734 officials are supposed to report on forfeiture, but they did not respond to requests for FY 2003 $1,414,098 information. FY 2004 $3,057,339 FY 2005 $958,577 1 Skolnik, S. (2006, September 26). Their loss is our gain as police claim the tools of the criminal FY 2006 $4,811,808 trade. Las Vegas Sun, p. 1. FY 2007 $3,171,097 FY 2008 $3,976,608 ForFEiturES as rEPortEd to lEMaS (drug-related only) Total $21,643,862 Average $2,404,874 per Year Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $1,395,369 $60,479 1997 $2,568,835 $54,081 2000 $2,494,879 $63,710 2003 $1,592,706 $45,025 FrEEdoM of inForMation data no data available; required to collect, but did not respond to request 75 NEW HAMPSHIRE Forfeiture Law Grade D+ State Law Evasion Grade FINAL GRADE FORFEITURE LAW New Hampshire civil forfeiture laws do not adequately protect the rights of property EquitablE Sharing owners. Prosecutors must prove only by a mere preponderance of the evidence that ProcEEdS from the aSSEtS your property is related to a crime and thus subject to forfeiture. Once established, ForFEiturE Fund (aFF) the burden rests on you to raise an innocent owner defense, effectively making you guilty until proven innocent. Law enforcement has a profit motive to pursue forfei- Proceeds Returned tures because they directly keep 45 percent of the proceeds. Another 45 percent of to State the proceeds go to a state forfeiture fund, while the remaining 10 percent accrues to FY 2000 $346,243 the state health and human services department. New Hampshire officials are sup- posed to track the amount of forfeiture activity, but they failed to respond to requests FY 2001 $455,552 for information about the state forfeiture program. FY 2002 $728,182 FY 2003 $882,749 FY 2004 $806,361 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2005 $1,271,291 FY 2006 $1,301,766 Total Assets Assets Forfeited per FY 2007 $1,334,732 Forfeited Law Enforcement Agency FY 2008 $1,072,645 1993 $1,437,084 $21,141 Total $8,199,521 1997 $24,712,305 $105,361 Average 2000 $334,170 $1,647 $911,058 per Year 2003 $678,210 $3,075 FrEEdoM of inForMation data no data available; required to collect, but did not respond to request 76 NEW JERSEY Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW New Jersey civil forfeiture laws offer scant protection to property owners. The EquitablE Sharing government only needs to show by a preponderance of the evidence that the seized ProcEEdS from the aSSEtS property is related to criminal activity. Once shown, the owner bears the burden of ForFEiturE Fund (aFF) proving that the property was not forfeitable, making him guilty until proven inno- cent. The property owner must show that he was not aware of the criminal activity, Proceeds Returned was not involved with the criminal activity and took all reasonable steps to prevent to State the criminal activity. Law enforcement keeps 100 percent of the funds forfeited, cre- FY 2000 $4,809,223 ating an incentive to pursue forfeiture over other law enforcement efforts. Moreover, New Jersey officials are not required to track and report forfeitures and proceeds. FY 2001 $3,211,799 FY 2002 $755,923 A New Jersey Superior Court judge ruled that the forfeiture regime violated constitu- tional due process because of the profit incentive imbedded in it.1 Unfortunately, the FY 2003 $1,158,130 appellate division overruled the district judge and reinstated the incentive provision.2 FY 2004 $2,818,466 FY 2005 $3,422,390 1 See: Bullock, S. (2003). Court seizes the day: New Jersey civil forfeiture laws declared unconstitu- FY 2006 $2,548,731 tional. Retrieved September 25, 2009, from http://www.ij.org/index.php?option=com_content&task=vie w&id=1425&Itemid=194. FY 2007 $5,699,340 2 State v. One 1990 Ford Thunderbird, 852 A.2d 1114 (2004). FY 2008 $5,969,112 Total $30,393,114 ForFEiturES as rEPortEd to lEMaS (drug-related only) Average $3,377,013 per Year Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $39,332,843 $105,045 1997 $50,604,691 $81,444 2000 $10,574,698 $18,622 2003 $8,271,790 $16,335 FrEEdoM of inForMation data no data available; not required to collect 77 NEW MEXICO Forfeiture Law Grade D+ State Law Evasion Grade FINAL GRADE FORFEITURE LAW Even after a reform effort in 2002, New Mexico's civil forfeiture laws still do not offer EquitablE Sharing adequate protections for property owners. To secure a civil forfeiture, the govern- ProcEEdS from the aSSEtS ment must prove, by clear and convincing evidence, that property is related to crimi- ForFEiturE Fund (aFF) nal activity and thus subject to forfeiture. This is a higher standard than most states but still lower than proof beyond a reasonable required to establish criminal guilt. Proceeds Returned Moreover, in most instances, property owners have the burden of proof for innocent to State owner claims. And law enforcement may still receive 100 percent of the proceeds FY 2000 $541,659 from any forfeiture. FY 2001 $1,157,905 FY 2002 $2,272,066 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2003 $2,319,114 FY 2004 $2,829,601 Total Assets Assets Forfeited per FY 2005 $3,017,396 Forfeited Law Enforcement Agency FY 2006 $2,616,795 1993 $2,265,510 $45,455 FY 2007 $3,759,580 1997 $3,680,178 $23,592 FY 2008 $3,282,329 2000 $2,556,181 $20,274 Total $21,796,445 2003 $3,623,358 $48,112 Average $2,421,827 per Year FrEEdoM of inForMation data no data available; not required to collect 78 NEW YORK Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW New York law provides some protection for property owners caught up in civil forfei- EquitablE Sharing ture, but the state's law enforcement agencies are among the nation's most aggressive ProcEEdS from the aSSEtS in pursuing equitable sharing with the federal government. Under New York civil ForFEiturE Fund (aFF) forfeiture law, the government's standard of proof to conduct a forfeiture depends on the property being pursued. For real property that was used as an instrumentality Proceeds Returned of the crime, the government must prove by clear and convincing evidence that the to State property is related to the crime and can be forfeited. For other property, the govern- FY 2000 $31,690,678 ment only needs to show by a preponderance of the evidence that the assets were the instrumentality or proceeds of the crime. Moreover, the property owner bears the FY 2001 $19,256,431 burden in innocent owner claims. Law enforcement may keep up to 60 percent of FY 2002 $26,982,890 the proceeds seized. The state received more than $237 million through equitable sharing between 2000 and 2008. FY 2003 $19,423,843 FY 2004 $21,847,333 Although New York "reformed" its asset forfeiture regime in 1990, it actually further encroached on the property rights of its citizens as a result of the reform. For ex- FY 2005 $27,704,134 ample, money located near controlled substances is now presumptively forfeitable— FY 2006 $16,613,808 in effect, presumed guilty. The property owner has a significant burden placed on him to overcome this presumption. FY 2007 $34,612,069 FY 2008 $39,370,757 ForFEiturES as rEPortEd to lEMaS (drug-related only) Total $237,501,943 Average $26,389,105 per Year Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $36,474,284 $169,517 1997 $36,670,306 $59,784 2000 $45,574,079 $93,750 2003 $34,480,660 $79,647 FrEEdoM of inForMation data 1990-2002: reports of forfeitures from district attorneys and task forces; 2008: reports of forfeitures by county 1990-2002 District Attorneys Task Forces Total Currency $45,060,601 $44,304,289 $89,364,890 Vehicles $3,424,657 $552,000 $3,976,657 Total $48,485,258 $44,856,289 $93,341,547 Money Other Property Total 79 2008 $69,858,632 $402,890 $70,261,522 NORTH CAROLINA Forfeiture Law Grade C+ State Law Evasion Grade FINAL GRADE FORFEITURE LAW Civil forfeiture essentially does not exist under North Carolina law. Property can EquitablE Sharing only be forfeited if the property owner is actually convicted of a crime. If he is con- ProcEEdS from the aSSEtS victed, the burden is on him to show why the property cannot be forfeited. More- ForFEiturE Fund (aFF) over, law enforcement does not receive any percentage of forfeiture proceeds. Proceeds Returned Perhaps it should come as no surprise, then, that North Carolina participates exten- to State sively in equitable sharing, receiving more than $96 million from 2000 to 2008. FY 2000 $7,125,291 FY 2001 $6,808,539 FY 2002 $4,581,800 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2003 $9,480,431 FY 2004 $8,536,628 Total Assets Assets Forfeited per FY 2005 $10,121,517 Forfeited Law Enforcement Agency FY 2006 $10,817,405 1993 $9,213,280 $69,634 FY 2007 $20,920,094 1997 $28,063,380 $49,920 FY 2008 $17,964,512 2000 $19,284,039 $39,180 Total $96,356,217 2003 $34,007,124 $68,065 Average $10,706,246 per Year FrEEdoM of inForMation data no data available; not required to collect 80 NORTH DAKOTA Forfeiture Law Grade B+ State Law Evasion Grade FINAL GRADE FORFEITURE LAW North Dakota provides better protections for property owners against civil forfeiture EquitablE Sharing abuse than many states. To forfeit property, the government only needs to dem- ProcEEdS from the aSSEtS onstrate that there is probable cause to bring the forfeiture action and establish, by ForFEiturE Fund (aFF) a preponderance of the evidence, that the property is related to criminal activity. The burden is on the property owner to prove his innocence and establish that the Proceeds Returned property is not subject to forfeiture, effectively making owners guilty until proven to State innocent. But the state does offer some important protections. Under North Dakota FY 2000 $26,767 law, residences and other real estate are not subject to forfeiture if they are co-owned by someone who has not been convicted of the underlying criminal offense.1 Addi- FY 2001 $47,097 tionally, none of the proceeds from civil forfeiture flow to law enforcement in North FY 2002 $33,974 Dakota. FY 2003 $10,796 FY 2004 $14,890 1 N.D. Cent. Code § 29-31.1-01; see also CCIM Institute. (2006, July 6). Civil asset forfeiture. Re- trieved September 25, 2009, from http://www.ccim.com/system/files/Civil_Asset_Forfeiture_0.pdf. FY 2005 $41,168 FY 2006 $35,959 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2007 $69,903 FY 2008 $81,172 Total Assets Assets Forfeited per Total $361,726 Forfeited Law Enforcement Agency Average $40,192 1993 $124,929 $3,726 per Year 1997 $45,667 $280 2000 $162,983 $1,193 2003 $76,954 $844 FrEEdoM of inForMation data no data available; not required to collect 81 OHIO Forfeiture Law Grade C- State Law Evasion Grade FINAL GRADE FORFEITURE LAW Ohio's protections against civil forfeiture abuse are mixed. In forfeiture proceed- EquitablE Sharing ings, the government must prove the property is related to a crime and thus subject ProcEEdS from the aSSEtS to forfeiture by clear and convincing evidence, a higher standard than most states ForFEiturE Fund (aFF) but still less than the beyond a reasonable doubt standard required for a criminal conviction.1 A property owner who wishes to argue his innocence has the burden of Proceeds Returned doing so.2 But most importantly, none of the proceeds from civil forfeiture go to law to State enforcement. Unfortunately for Ohio property owners, though, even though state FY 2000 $4,075,942 law is rather protective, law enforcement officials participate extensively in equitable sharing, receiving more than $80 million from 2000 to2008. FY 2001 $6,064,363 FY 2002 $9,015,890 FY 2003 $9,579,065 1 O. R. C. § 2981.05(D). 2 O. R.C. § 2981.09(A). FY 2004 $8,475,627 FY 2005 $6,782,028 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2006 $12,798,625 FY 2007 $13,907,440 Total Assets Assets Forfeited per FY 2008 $12,405,013 Forfeited Law Enforcement Agency Total $83,103,993 1993 $9,496,783 $25,791 Average $9,233,777 1997 $31,912,267 $40,872 per Year 2000 $11,093,755 $15,106 2003 $10,540,139 $12,981 FrEEdoM of inForMation data no data available; required to collect, but did not respond to request 82 OKLAHOMA Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW Oklahoma has terrible civil forfeiture laws, and its statutes give law enforcement sig- EquitablE Sharing nificant financial incentives to seize property. To forfeit property in civil proceedings, ProcEEdS from the aSSEtS the government typically must show that property is related to a crime and subject to ForFEiturE Fund (aFF) forfeiture by a preponderance of the evidence. In all civil forfeitures in Oklahoma, owners are presumed guilty and must contest forfeiture by proving they did not know Proceeds Returned property was being used illegally. Worse, law enforcement receives 100 percent of to State the proceeds from civil forfeiture. FY 2000 $1,384,903 When assets are seized by the Oklahoma Bureau of Narcotics and Dangerous Drugs FY 2001 $729,415 Control, the Bureau can agree to share the proceeds with other law enforcement FY 2002 $5,754,965 agencies. There are some limits on the amount of forfeited funds the Bureau can spend, but the cap was raised substantially in 2007. Previously, the Bureau needed FY 2003 $6,418,639 to seek permission of the legislature to spend more than $900,000 of forfeited funds. FY 2004 $5,630,156 Since 2007, that cap is $2,000,000.1 Oklahoma law enforcement officials have used civil forfeiture laws aggressively, averaging more than $5.5 million per year in forfei- FY 2005 $7,158,850 ture proceeds between 2000 and 2007. FY 2006 $6,569,517 FY 2007 $6,189,501 FY 2008 $2,579,483 1 63 Ok. St. 2-503(F)(2). Total $42,415,429 Average $4,712,825 ForFEiturES as rEPortEd to lEMaS (drug-related only) per Year Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $3,321,841 $22,833 1997 $13,403,508 $26,122 2000 $3,495,123 $8,388 2003 $11,154,378 $27,525 FrEEdoM of inForMation data On Next Page 83 oKlahoMa FrEEdoM of inForMation data reports of forfeitures by district; types and number of law enforcement agencies unclear Currency Non-currency Total FY 2000 $3,428,322 $50,820 $3,479,142 FY 2001 $3,807,605 $846,641 $4,654,246 FY 2002 $3,924,541 $649,651 $4,574,192 FY 2003 $6,520,748 $778,361 $7,299,109 FY 2004 $5,887,904 $890,421 $6,778,325 FY 2005 $5,236,443 $686,191 $5,922,634 FY 2006 $5,378,123 $704,801 $6,082,924 FY 2007 $5,648,549 $693,629 $6,342,178 Total $39,832,234 $5,300,516 $45,132,750 Average per Year $4,979,029 $662,564 $5,641,594 84 OREGON Forfeiture Law Grade C+ State Law Evasion Grade FINAL GRADE FORFEITURE LAW Oregon civil forfeiture laws have been the subject of much controversy and litigation EquitablE Sharing over the past decade. In 2000, the voters passed a strong initiative that eliminated ProcEEdS from the aSSEtS both the profit incentive and placed a high standard of proof on the government in ForFEiturE Fund (aFF) civil forfeiture proceedings. Unfortunately, that initiative was put on hold while its constitutionality was challenged in court by law enforcement, where it was eventually Proceeds Returned upheld in 2006. By that time, however, law enforcement successfully advocated for to State both additional changes in the legislature and also for another initiative, which nar- FY 2000 $830,027 rowly passed in 2008 and curtailed several of the strong reforms passed in the 2000 initiative. FY 2001 $655,252 FY 2002 $3,557 Thankfully for property owners, the burden has remained on the government for innocent owner claims regardless of which law or amendment was in effect. Before FY 2003 $644,153 statutory changes were made in 2005, the government needed to show only probable FY 2004 $477,160 cause to forfeit property in the first instance. Today, to secure forfeiture of personal property, the government has to prove, only by a preponderance of the evidence, FY 2005 $668,926 that the property is proceeds or an instrumentality of a crime committed by another FY 2006 $564,374 person. If the property is real property, the standard of proof is clear and convinc- ing evidence. Before 2005, law enforcement was able to keep 92 percent of proceeds FY 2007 $1,881,774 for its own use. After 2005, the formula was changed so that law enforcement now FY 2008 $1,024,763 keeps 63 percent. That formula remains in place after the 2008 initiative. Total $6,749,986 ForFEiturES as rEPortEd to lEMaS (drug-related only) Average $749,998 per Year Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $3,267,269 $36,278 1997 $4,781,832 $24,765 2000 $3,142,414 $18,859 2003 $3,236,650 $22,035 FrEEdoM of inForMation data no data available; required to collect, data Provided Was unusable 85 PENNSYLVANIA Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW Pennsylvania has terrible civil forfeiture laws. The government can civilly forfeit property EquitablE Sharing by a preponderance of the evidence showing that the property is related to a crime and ProcEEdS from the aSSEtS subject to forfeiture, a standard significantly lower than the beyond a reasonable doubt ForFEiturE Fund (aFF) standard required for a criminal conviction. And property owners, not the government, bear the burden of proof in innocent owner claims, making property owners effectively Proceeds Returned guilty until proven innocent. Worse still, all of the money seized by law enforcement agen- cies and forfeited ultimately makes its way back into their hands. The money is first distrib- to State uted to the district attorney and state Attorney General, and, under the law, they must use it FY 2000 $4,400,314 for enforcement of drug laws. Pennsylvania law enforcement officials take advantage of the commonwealth's broad forfeiture laws. In just a three-year period (2000-2002), more than FY 2001 $3,407,745 $20.2 million in currency, vehicles, real estate and other property was forfeited. FY 2002 $4,573,607 A 1992 case illustrates the lengths to which Pennsylvania law enforcement is willing to go to FY 2003 $4,232,797 seize and forfeit citizens' property. Mattia and Marjorie Lonardo owned Shorty's Café in a FY 2004 $5,839,157 "drug infested area" of Allentown, Pa.1 Aware that their café was being used for drug sales, they took significant steps to fight back. According to the appellate court: FY 2005 $6,251,089 Mr. Lonardo made it known to his patrons that he would FY 2006 $6,168,214 notify the police if he saw or suspected the possession of FY 2007 $10,381,304 drugs[.] On his own initiative, Mr. Lonardo reported illegal activities to the police at least seven times, and police offers FY 2008 $8,173,837 admitted at hearing that at least two raids were initiated by Total $53,428,064 Mr. Londardo's reports. At times Mr. Lonardo called the police anonymously in fear of his life, instructed his employees Average to call the police whenever they saw patrons with drugs and $5,936,452 per Year ordered patrons to leave the bar when they were observed with drugs. Also, he identified a suspect and cooperated with police searches at the raids, discussed drugs and loitering problems with the police captain and followed his instruction by posting signs on all the windows. Mr. Lonardo received threats against himself and family and was injured when glass was thrown at him because he refused to acquiesce in drug ac- tivities at the cage. He also sustained damages to the property due to this policy toward patrons dealing or possessing drugs.2 The police seized Mr. Lonardo's café, and a trial court ordered it forfeited.3 The Lonardos were not themselves charged with any violation of the Pennsylvania Controlled Substances Act. Nonetheless, the trial court concluded—after the testimony of 24 police officers— that the property was used in drug-related activity and the Lonardos did not "reasonably disclaim . . . ["lack of knowledge of the drug related activity"]."4 On appeal, the state defended the holding—arguing that property could be seized if the owner had knowledge of drug activity, even if the owner did not consent to it.5 Fortunately, the appellate court overturned the trial court, concluding that the Lonardos "did all that could reasonably be expected of them to prevent the illegal use of their property[.]"6 1 Commonwealth of Pennsylvania v. Gordon Street, 607 A.2d 839, 840-841 (Pa. Commw. Ct. 1992). 2 Id. at 846. 3 Id. at 841. 86 4 Ibid. 5 Id. at 843. 6 Id. at 846. ForFEiturES as rEPortEd to lEMaS (drug-related only) Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $9,550,623 $44,080 1997 $22,778,083 $17,691 2000 $6,940,283 $6,677 2003 $4,962,874 $4,844 FrEEdoM of inForMation data reports of forfeitures by law enforcement agencies Currency Vehicles Real Estate Other Total FY 2000 $5,521,524 $656,273 $362,518 $103,134 $6,643,448 FY 2001 $5,052,475 $440,521 $460,349 $44,958 $5,998,303 FY 2002 $6,353,097 $818,455 $350,433 $93,250 $7,615,235 Total $16,927,095 $1,915,249 $1,173,300 $241,342 $20,256,986 Average $5,642,365 $638,416 $391,100 $80,447 $6,752,329 per Year 87 RHODE ISLAND Forfeiture Law Grade C- State Law Evasion Grade FINAL GRADE FORFEITURE LAW Rhode Island civil forfeiture laws fail to protect property owners. The government EquitablE Sharing only needs to show probable cause to believe a property is related to a crime to forfeit ProcEEdS from the aSSEtS it. And property owners are effectively guilty until proven innocent, as the burden ForFEiturE Fund (aFF) is on the property owner to prove he was not aware of or did not participate in the underlying crime. Ninety percent of forfeited property makes its way to law enforce- Proceeds Returned ment, while only 10 percent is allocated to the Department of Health for drug abuse to State treatment programs. The state is supposed to collect information on forfeiture but FY 2000 $673,840 failed to respond to requests for information. FY 2001 $321,372 FY 2002 $549,664 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2003 $755,538 FY 2004 $1,527,027 Total Assets Assets Forfeited per FY 2005 $683,856 Forfeited Law Enforcement Agency FY 2006 $1,015,913 1993 $1,940,640 $47,778 FY 2007 $1,935,590 1997 $1,049,485 $15,527 FY 2008 $1,583,601 2000 $591,461 $8,206 Total $9,046,401 2003 $1,287,895 $32,560 Average $1,005,156 per Year FrEEdoM of inForMation data no data available; required to collect, but did not respond to request 88 SOUTH CAROLINA Forfeiture Law Grade D+ State Law Evasion Grade FINAL GRADE FORFEITURE LAW South Carolina has dreadful civil forfeiture laws. The government can forfeit proper- EquitablE Sharing ty by demonstrating mere probable cause that the property is related to a crime and ProcEEdS from the aSSEtS subject to forfeiture. This is the lowest standard, the same one required for a search ForFEiturE Fund (aFF) warrant, and far lower than the beyond a reasonable doubt standard required for a criminal conviction. South Carolina law also considers property owners to be guilty Proceeds Returned until proven innocent, placing the burden on owners to prove they had no connec- to State tion to an underlying crime to get their property back. And law enforcement keeps FY 2000 $1,298,766 95 percent of the proceeds—75 percent goes directly to the law enforcement agency and 20 percent to prosecutors. The remaining five percent goes to the state's general FY 2001 $1,199,110 fund. Law enforcement and prosecutors are required to use the money to fight drug FY 2002 $3,641,683 offenses. Moreover, there is no requirement that the state collect data on forfeitures, so citizens do not know how the state's powerful civil forfeitures laws are being used. FY 2003 $3,560,979 FY 2004 $4,893,591 FY 2005 $3,005,058 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2006 $4,414,456 FY 2007 $2,877,220 Total Assets Assets Forfeited per FY 2008 $4,761,356 Forfeited Law Enforcement Agency Total $29,652,219 1993 $10,233,388 $132,644 Average 1997 $6,626,501 $28,927 $3,294,691 per Year 2000 $5,263,571 $26,038 2003 $4,042,927 $23,292 FrEEdoM of inForMation data no data available; not required to collect 89 SOUTH DAKOTA Forfeiture Law Grade C State Law Evasion Grade FINAL GRADE FORFEITURE LAW South Dakota does little to protect its citizens from civil forfeiture abuse, as its poor EquitablE Sharing law grade of D- shows. The state's final grade of C reflects limited use of equitable ProcEEdS from the aSSEtS sharing to date. To forfeit real property, the government must prove its case by a pre- ForFEiturE Fund (aFF) ponderance of the evidence, but for all other property, the government only needs to show probable cause. These are low standards, far below what is needed to establish Proceeds Returned criminal guilt. For an innocent owner claim, the property owner is forced to bear to State the burden of proof, effectively presuming owners are guilty. And law enforcement FY 2000 $9,583 has access to 100 percent of the money it brings in from civil forfeiture. Initially, the assets are distributed to a "drug control fund" managed by the Attorney General, but FY 2001 $105,550 law enforcement can then request that money for its own use. There is no require- FY 2002 $53,130 ment that law enforcement collect or report information on the use of forfeiture or its proceeds. FY 2003 $122,365 FY 2004 $22,928 FY 2005 $48,750 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2006 $36,143 FY 2007 $42,765 Total Assets Assets Forfeited per FY 2008 $6,784 Forfeited Law Enforcement Agency Total $447,998 1993 $163,568 $8,616 Average 1997 $2,563,089 $12,087 $49,778 per Year 2000 $307,682 $1,802 2003 $1,114,539 $5,476 FrEEdoM of inForMation data no data available; not required to collect 90 TENNESSEE Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW Tennessee has broad civil forfeiture laws that fail to protect the rights of property EquitablE Sharing owners. There, the government must establish by only a preponderance of the ProcEEdS from the aSSEtS evidence that property is related to a crime and subject to forfeiture. Tennessee ForFEiturE Fund (aFF) also effectively presumes owners are guilty, as the property owner bears the burden of proof for innocent owner claims. And, while it cannot be used to supplement Proceeds Returned salaries, local drug enforcement nonetheless keeps 100 percent of property forfeited, to State and there is no requirement to collect or report data on the use of forfeiture or its FY 2000 $4,339,691 proceeds in Tennessee. FY 2001 $5,081,198 FY 2002 $4,838,211 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2003 $3,470,935 FY 2004 $3,416,186 Total Assets Assets Forfeited per FY 2005 $5,642,415 Forfeited Law Enforcement Agency FY 2006 $4,153,200 1993 $10,582,931 $47,349 FY 2007 $6,938,343 1997 $19,894,405 $47,255 FY 2008 $6,221,133 2000 $18,441,459 $46,945 Total $44,101,312 2003 $15,675,257 $49,327 Average $4,900,146 per Year FrEEdoM of inForMation data no data available; not required to collect 91 TEXAS Forfeiture Law Grade D- State Law Evasion Grade FINAL GRADE FORFEITURE LAW Texas has broad civil forfeiture laws that offer little protection for property owners— EquitablE Sharing and it uses them, as well as federal equitable sharing, aggressively. In civil forfeiture ProcEEdS from the aSSEtS proceedings, the state must show that property is related to a crime and subject to ForFEiturE Fund (aFF) forfeiture by a preponderance of the evidence. This standard is significantly lower than the beyond a reasonable doubt finding required for a criminal conviction. Proceeds Returned And property owners bear the burden for innocent owner claims, making owners, to State in effect, guilty until proven innocent. Moreover, law enforcement retains up to 90 FY 2000 $22,576,969 percent of proceeds from civil forfeiture. FY 2001 $19,668,285 Between 2001 and 2007, Texas law enforcement received more than $225 million in FY 2002 $14,419,530 civil forfeiture proceeds under state law and $200 million in equitable sharing with the federal government from 2000 to 2008, although these numbers may overlap to FY 2003 $13,659,504 some extent, as it is unclear whether freedom of information data includes equitable FY 2004 $19,386,146 sharing revenue. FY 2005 $17,123,807 FY 2006 $28,859,716 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2007 $36,200,059 FY 2008 $29,552,435 Total Assets Assets Forfeited per Total $201,446,451 Forfeited Law Enforcement Agency 1993 $52,627,133 $137,845 Average $22,382,939 per Year 1997 $39,234,793 $21,645 2000 $50,216,412 $51,452 2003 $62,011,133 $63,005 FrEEdoM of inForMation data On Next Page 92 tEXaS FrEEdoM of inForMation data reports of forfeitures from law enforcement, task forces and district attorneys All Local Law Task Forces District Attorneys Total Enforcement 2001 Currency $7,224,912.58 $1,377,400.42 $8,843,326.37 $17,445,639 Real Property $1,164,551.72 $193,292.00 $179,790.70 $1,537,634 Total $8,389,464 $1,570,692 $9,023,117 $18,983,274 2002 Currency $207,103.10 $977,923.43 $3,999,492.89 $5,184,519 Real Property $1,563,336.41 $40,108.01 $214,775.65 $1,818,220 Total $1,770,440 $1,018,031 $4,214,269 $7,002,739 2003 Currency $23,159,305.55 $5,791,442.53 $11,051,320.35 $40,002,068 Real Property $2,031,843.18 $75,696.70 $622,984.37 $2,730,524 Total $25,191,149 $5,867,139 $11,674,305 $42,732,593 2004 Currency $23,043,183.50 $6,146,440.65 $6,786,757.93 $35,976,382 Real Property $2,608,395.63 $1,051,902.37 $982,751.30 $4,643,049 Total $25,651,579 $7,198,343 $7,769,509 $40,619,431 2005 Currency $11,985,617.55 $3,955,042.09 $9,368,019.38 $25,308,679 Real Property $3,192,233.50 $460,740.50 $529,784.50 $4,182,759 Total $15,177,851 $4,415,783 $9,897,804 $29,491,438 2006 Currency $23,882,370.27 $1,413,368.61 $7,766,550.47 $33,062,289 Real Property $3,483,398.02 $432,935.00 $605,523.81 $4,521,857 Total $27,365,768 $1,846,304 $8,372,074 $37,584,146 2007 Currency $32,796,988.95 $1,513,726.00 $9,642,951.58 $43,953,667 Real Property $3,855,765.91 $330,917.00 $1,038,902.28 $5,225,585 Total $36,652,755 $1,844,643 $10,681,854 $49,179,252 Grand Total $140,199,006 $23,760,935 $61,632,932 $225,592,873 Grand Average per $20,028,429 $3,394,419 $8,804,705 $32,227,553 Year 93 UTAH Forfeiture Law Grade C- State Law Evasion Grade FINAL GRADE FORFEITURE LAW From 2000 to 2004, Utah law was relatively protective of property owners, but no longer. EquitablE Sharing Today, while the government must prove property is related to a crime subject to forfeiture ProcEEdS from the aSSEtS by clear and convincing evidence, a relatively high standard, and the government bears the ForFEiturE Fund (aFF) burden in innocent owner contests for most forfeitures, 100 percent of property seized and forfeited in connection to alleged controlled substance offenses is allocated to law enforcement through the Crime Reduction Assistance Program. Proceeds Returned to State These laws are partly the product of a sustained effort by law enforcement to reverse a voter FY 2000 $226,524 initiative protecting property rights. In 2000, nearly 70 percent of Utah voters passed a measure that eliminated allocation of forfeited money to law enforcement.1 But law enforce- FY 2001 $199,037 ment was determined. Rather than obey the new law, some county prosecutors persisted in diverting some of the forfeited money into their own accounts. Pressure from a group of FY 2002 $3,357 citizens helped end this practice. No longer able to use the proceeds from forfeiture, police FY 2003 $0 signaled that they no longer had as much interest in the practice. One remarked that "[d]oing forfeiture [was now] way down the line in [his] priorities."2 But in 2004, the police succeeded FY 2004 $619,006 in having the initiative overturned by the state legislature, so now 100 percent of proceeds once again go to police and prosecutors.3 FY 2005 $245,948 FY 2006 $1,001,545 Despite a requirement that information on the use of forfeiture be collected, Utah officials did not respond to requests for data. FY 2007 $1,229,094 1 Institute for Justice. (n. d.). Ending prosecution for profit in Utah: Citizens demand prosecu- FY 2008 $1,524,820 tors follow state's civil forfeiture law. Retrieved September 25, 2009, from http://www.ij.org/index. php?option=com_content&task=view&id=1063&Itemid=165. Total $5,049,331 2 Bullock, S. (2003, October). IJ helps end Utah's prosecution for profit. Retrieved September 25, 2009, from http://www.ij.org/index.php?option=com_content&task=view&id=1435&Itemid=194. Average $561,037 3 Dobner, J. (2004, March 3). Lawmakers overturn 2000 forfeiture law. Retrieved September 25, per Year 2009, from http://www.deseretnews.com/article/595046371/Lawmakers-overturn-2000-forfeiture-law. html. ForFEiturES as rEPortEd to lEMaS (drug-related only) Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $1,740,560 $56,292 1997 $1,587,495 $12,130 2000 $1,298,007 $10,384 2003 $275,165 $2,892 FrEEdoM of inForMation data no data available; required to collect , but did not respond to request 94 VERMONT Forfeiture Law Grade B State Law Evasion Grade FINAL GRADE FORFEITURE LAW Vermont has one of the better civil forfeiture laws in the country. In civil forfeiture EquitablE Sharing proceedings, the state must show by clear and convincing evidence that the prop- ProcEEdS from the aSSEtS erty is related to a crime and may be forfeited, a higher standard than most states. ForFEiturE Fund (aFF) Unfortunately, Vermont presumes owners are guilty, as the burden in innocent owner claims is on the owner. But importantly, none of the property seized through civil Proceeds Returned forfeiture is allocated to law enforcement. The money goes to the state treasury. to State FY 2000 $488,454 FY 2001 $824,938 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2002 $701,553 FY 2003 $956,841 Total Assets Assets Forfeited per Forfeited Law Enforcement Agency FY 2004 $919,259 FY 2005 $1,023,538 1993 $990,599 $28,475 FY 2006 $978,247 1997 $152,306 $1,646 FY 2007 $842,834 2000 $244,161 $2,736 FY 2008 $995,851 2003 $1,217,532 $16,386 Total $7,731,515 Average $859,057 FrEEdoM of inForMation data per Year no data available; Possible requirement to collect for review by State treasurer 95 VIRGINIA Forfeiture Law Grade D- State Law Evasion Grade FINAL GRADE FORFEITURE LAW Virginia's civil forfeiture laws utterly fail to protect property owners. The govern- EquitablE Sharing ment must prove, only by a preponderance of the evidence, that property is related ProcEEdS from the aSSEtS to a crime and subject to forfeiture. In turn, property owners bear the burden of ForFEiturE Fund (aFF) proof for innocent owner claims, effectively making them guilty until proven in- nocent. Moreover, law enforcement enjoys 100 percent of the proceeds from civil Proceeds Returned forfeiture. Initially, 90 percent of the receipts go directly to law enforcement agencies to State that participated in a forfeiture. Thereafter, 10 percent goes to the Department of FY 2000 $4,147,130 Criminal Justice Services to be used to promote law enforcement activities. Virginia's broad laws have enabled the commonwealth to receive, on average, more than $7.2 FY 2001 $2,639,465 million per year in forfeiture revenue between 1996 and 2007. FY 2002 $2,638,756 FY 2003 $2,928,349 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2004 $4,268,111 FY 2005 $4,069,024 Total Assets Assets Forfeited per FY 2006 $4,948,114 Forfeited Law Enforcement Agency FY 2007 $29,647,752 1993 $6,833,973 $59,178 FY 2008 $26,673,908 1997 $5,945,240 $17,296 Total $81,960,609 2000 $155,453,132 $510,969 Average $9,106,734 2003 $9,213,476 $30,954 per Year FrEEdoM of inForMation data On Next Page 96 Virginia FrEEdoM of inForMation data local law enforcement agencies only (district attorney and task force data not reliable) Value of Assets Forfeited Number of Forfeitures Currency Vehicles Total Currency Vehicles Total 1996 $2,606,021 $451,285 $3,057,305 1,098 268 1,366 1997 $2,241,737 $2,141,597 $4,383,334 1,184 391 1,575 1998 $3,000,466 $2,182,659 $5,183,125 1,332 418 1,750 1999 $3,057,957 $1,918,062 $4,976,019 1,492 409 1,901 2000 $3,882,837 $2,107,804 $5,990,641 1,623 463 2,086 2001 $3,752,846 $2,620,232 $6,373,078 1,693 521 2,214 2002 $3,828,463 $2,598,131 $6,426,594 1,848 569 2,417 2003 $5,467,848 $3,323,225 $8,791,073 2,160 617 2,777 2004 $6,754,732 $3,484,799 $10,239,531 2,456 803 3,259 2005 $6,698,992 $4,493,597 $11,192,589 1,723 827 2,550 2006 $5,180,497 $4,294,805 $9,475,302 1,556 745 2,301 2007 $6,931,959 $4,397,787 $11,329,746 1,689 772 2,461 Total $53,404,354 $34,013,983 $87,418,337 19,854 6,803 26,657 Average per $4,450,363 $2,834,499 $7,284,861 1,655 567 2,221 Year 97 WASHINGTON Forfeiture Law Grade D State Law Evasion Grade FINAL GRADE FORFEITURE LAW Washington's civil forfeiture laws do not adequately protect property owners. Once EquitablE Sharing the government seizes property, it must give notice to the owner of the seizure. If the ProcEEdS from the aSSEtS owner fails to respond, the property, unless it is real property, is automatically forfeit- ForFEiturE Fund (aFF) ed based only on the government's allegation of probable cause to seize the property for forfeiture. If the owner does respond and contests the forfeiture, the government Proceeds Returned then must establish that the property is related to a crime and thus subject to forfei- to State ture by a mere showing of preponderance of the evidence, a standard lower than FY 2000 $867,260 the beyond a reasonable doubt standard required for a criminal conviction. And property owners in forfeiture proceedings are effectively guilty until proven innocent, FY 2001 $1,607,481 bearing the burden of proof for innocent owner claims. Ultimately, all of the money FY 2002 $1,106,521 collected through civil forfeiture flows to law enforcement: Ninety percent is retained by the seizing agency to improve drug enforcement activity while the remainder goes FY 2003 $908,482 to a "violence reduction and drug enforcement account." FY 2004 $2,984,942 Disturbingly, a 2001 article in the Seattle Post-Intelligencer reported that "one out of FY 2005 $2,725,294 five people whose assets were seized [in one county in the state] were never charged FY 2006 $1,888,965 with a crime."1 Major reform efforts in Washington have had mixed success. The legislature did adopt one measure to shift the burden of proof to the government FY 2007 $2,945,689 in innocent owner proceedings.2 But in 2002, an initiative that would have placed FY 2008 $2,499,827 stronger limits on forfeiture failed to garner the necessary signatures to earn con- sideration by the state legislature.3 It would have eliminated forfeiture without a Total $17,534,461 criminal conviction, as well as law enforcement's financial incentives to engage in the practice.4 Naturally, the initiative "drew heated opposition from law enforcement," Average $1,948,273 who insisted it would "choke off millions of dollars raised annually."5 per Year 1 Skolnik, S. (2001, December 13). Critics target drug raid seizures. Seattle Post-Intelligencer, p. A1. 2 Skolnik, S. (2002, January 3). Initiative to limit police seizure power falls short. Seattle Post-Intelligencer, p. B2. 3 Ibid. 4 Ibid. 5 Ibid. ForFEiturES as rEPortEd to lEMaS (drug-related only) Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $5,499,939 $58,598 1997 $4,303,441 $16,255 2000 $5,546,859 $20,544 2003 $16,120,891 $96,321 98 FrEEdoM of inForMation data On Next Page WaShington FrEEdoM of inForMation data reports of forfeitures from law enforcement agencies and task forces Law Enforcement Task Forces Total 2001 $335,453 $369,631 $705,084 2002 $350,150 $330,495 $680,645 2003 $387,260 $599,140 $986,400 2004 $305,721 $518,669 $824,390 2005 $298,612 $1,031,323 $1,329,935 2006 $338,580 $527,826 $866,406 Total $2,015,776 $3,377,084 $5,392,860 Average $335,963 $562,847 $898,810 per Year 99 WEST VIRGINIA Forfeiture Law Grade D- State Law Evasion Grade FINAL GRADE FORFEITURE LAW West Virginia has poor civil forfeiture laws. The government must demonstrate that EquitablE Sharing property is related to a crime and subject to forfeiture by a mere preponderance of ProcEEdS from the aSSEtS the evidence, a standard much easier for law enforcement than proving criminal guilt ForFEiturE Fund (aFF) beyond a reasonable doubt. And the burden is on owners for innocent owner claims, making owners effectively guilty until proven innocent. Proceeds Returned to State When money is seized and forfeited, all of the proceeds go to law enforcement: FY 2000 $1,044,905 10 percent goes to the prosecuting attorney, and 90 percent goes to a law enforce- ment investigation fund. Although there is no requirement in West Virginia that FY 2001 $386,402 law enforcement officials collect information on forfeiture, a January 2009 article FY 2002 $571,932 in the Register Herald offered some insight into the way police in Beckley, W.V., used forfeiture proceeds. In 2008, the article reported, police brought in $65,000 and six FY 2003 $733,707 vehicles through forfeiture. Forfeiture revenue provided some of the funding to buy a FY 2004 $485,771 $10,000 K-9 police dog for the department.1 FY 2005 $444,318 FY 2006 $485,430 1 Pridemore, A. A. (2009, January 31). Drug war strategy: Hit 'em in their wallets. Retrieved Sep- tember 25, 2009, from http://www.register-herald.com/homepage/local_story_031223004.html. FY 2007 $24,636,120 FY 2008 $20,764,145 Total $49,552,730 ForFEiturES as rEPortEd to lEMaS (drug-related only) Average $5,505,859 per Year Total Assets Assets Forfeited per Forfeited Law Enforcement Agency 1993 $828,828 $23,209 1997 $1,500,220 $7,627 2000 $1,204,723 $7,420 2003 $567,410 $3,360 FrEEdoM of inForMation data no data available; not required to collect 100 WISCONSIN Forfeiture Law Grade C State Law Evasion Grade FINAL GRADE FORFEITURE LAW Wisconsin's civil forfeiture laws are not as bad as other states. In civil forfeiture pro- EquitablE Sharing ceedings, the government must establish beyond a reasonable doubt that property is ProcEEdS from the aSSEtS related to a crime. That is the highest standard and equivalent to what is needed for ForFEiturE Fund (aFF) a criminal conviction. Property owners do, however, bear the burden of proof for innocent owner claims. Proceeds Returned to State The financial incentives to seek forfeiture are not as strong in Wisconsin as in other FY 2000 $2,147,686 states. Up to 50 percent of the proceeds from the sale of forfeited property goes to law enforcement. When the forfeited property is money, the amount flowing to FY 2001 $23,904,245 police depends on the amount forfeited. If the amount forfeited does not exceed FY 2002 $1,659,109 $2,000, 70 percent of the money goes to law enforcement to pay forfeiture expenses. If more than $2,000 is forfeited, law enforcement receives 50 percent. Perhaps to FY 2003 $2,230,539 circumvent these restrictions, Wisconsin actively participates in equitable sharing FY 2004 $3,937,459 agreements, receiving more than $50 million in proceeds from 2000 to 2008. FY 2005 $3,577,032 FY 2006 $3,846,503 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2007 $5,347,813 FY 2008 $3,741,468 Total Assets Assets Forfeited per Total $50,391,854 Forfeited Law Enforcement Agency Average 1993 $2,960,576 $20,012 $5,599,095 per Year 1997 $25,291,380 $41,516 2000 $3,282,532 $6,596 2003 $2,527,846 $4,527 FrEEdoM of inForMation data no data available; not required to collect 101 WYOMING Forfeiture Law Grade C State Law Evasion Grade FINAL GRADE FORFEITURE LAW Wyoming has horrible civil forfeiture laws, with an F law grade. The state's final EquitablE Sharing grade is pulled up to a C only by limited use of equitable sharing (an evasion grade ProcEEdS from the aSSEtS of A) to date. The government can seize and subsequently forfeit property with ForFEiturE Fund (aFF) just probable cause that it is subject to forfeiture. This is the lowest standard, far easier for the government than proving criminal guilt beyond a reasonable doubt. A Proceeds Returned property owner who wishes to claim an innocent owner defense bears the burden of to State proof, effectively making owners guilty until proven innocent. All of the proceeds FY 2000 $0 from civil forfeiture are distributed to the state Attorney General's asset fund. In turn, those funds are used as matching funds for federal drug enforcement grants.1 FY 2001 $38,604 Finally, although officials are required to collect information on the use of forfeiture, FY 2002 $715 they did not respond to requests. FY 2003 $10,881 1 Wyoming Division of Criminal Investigation. (2002, February 28). Drug asset seizure and forfei- ture. Retrieved September 25, 2009, from http://attorneygeneral.state.wy.us/dci/text_das.html. FY 2004 $18,250 FY 2005 $119,916 FY 2006 $260,660 ForFEiturES as rEPortEd to lEMaS (drug-related only) FY 2007 $66,348 FY 2008 $113,176 Total Assets Assets Forfeited per Forfeited Law Enforcement Agency Total $628,550 1993 $1,369,335 $34,030 Average $69,839 per Year 1997 $7,028 $130 2000 $281,988 $5,392 2003 $1,364,135 $16,056 FrEEdoM of inForMation data no data available; required to collect , but did not respond to request 102 FEDERAL GOVERNMENT D- FORFEITURE LAW GRADE FORFEITURE LAW As the numbers below indicate, the federal government has a very aggressive civil forfeiture program. Federal law enforcement forfeits a substantial amount of property for its own use while also teaming up with local and state governments to prosecute forfeiture actions, whereby all of the agencies share in the bounty at the end of the day. Outrage over abuse of civil forfeiture laws led to the passage of the Civil Asset Forfei- ture Reform Act (CAFRA) in 2000. Under these changes, the government now must show by a preponderance of the evidence why the property should be forfeited. The Act also created an innocent owner defense that lets individuals keep their property if they can show either that they did not know that it was being used illegally or that they took reasonable steps to stop it. But while CAFRA heightened some procedural protections, it failed to address the largest problem in the federal civil forfeiture system: the strong pecuniary interest that federal law enforcement agencies have in the outcome of the forfeiture proceed- ing. For the past 25 years, federal agencies have been able to keep all of the property that they seize and forfeit. And that has led to explosive growth in the amount of forfeiture activity at the federal level. u.S. dEPartMEnt of JuSticE aSSEtS ForFEiturE Fund (aFF)1 Deposits to Fund Net Assets Cash and Cash Total Property in Fund Equivalents Deposits FY 2000 $536,500,000 NA NA NA FY 2001 $525,800,000 $357,900,000 $48,900,000 $406,800,000 FY 2002 $485,200,000 $355,600,000 $68,000,000 $423,600,000 FY 2003 $528,400,000 $413,900,000 $72,100,000 $486,000,000 FY 2004 $427,900,000 $448,500,000 $94,600,000 $543,100,000 FY 2005 $448,000,000 $514,900,000 $80,600,000 $595,500,000 FY 2006 $651,100,000 $1,009,200,000 $115,700,000 $1,124,900,000 FY 2007 $734,200,000 $1,409,000,000 $106,700,000 $1,515,700,000 FY 2008 $1,000,700,000 $1,222,600,000 $63,400,000 $1,286,000,000 Total $5,337,800,000 $5,731,600,000 $650,000,000 $6,381,600,000 Average NA $716,450,000 $81,250,000 $797,700,000 per Year 103 1 Data retrieved from AFF Annual Financial Statements: http://www.usdoj.gov/jmd/afp/01programaudit/index.htm. u.S. dEPartMEnt of trEaSury ForFEiturE Fund21 Deposits to Fund Net Assets Currency and Equitable Sharing Property in Fund Equivalent Payments to States FY 2001 $237,300,000 $65,700,000 $25,800,000 NA FY 2002 $173,000,000 $113,100,000 $33,000,000 $48,500,000 FY 2003 $177,200,000 $163,800,000 $31,000,000 $78,500,000 FY 2004 $194,100,000 $228,900,000 $42,600,000 $98,700,000 FY 2005 $255,300,000 $209,100,000 $49,500,000 $75,700,000 FY 2006 $236,800,000 $167,900,000 $46,700,000 $81,300,000 FY 2007 $361,400,000 $208,000,000 $52,600,000 $32,700,000 FY 2008 $426,800,000 $412,200,000 $44,200,000 $78,500,000 Total $2,061,900,000 $1,568,700,000 $325,400,000 $493,900,000 Average per $257,737,500 $196,087,500 $40,675,000 $70,557,143 Year 2 Data retrieved from Treasury Forfeiture Fund Annual Accountability Reports: http://www.treas.gov/offices/en- forcement/teoaf/annual-reports.shtml. 104 Appendix A Appendix A Methods This appendix provides further detailed information about the methods used in the statistical analysis of equitable sharing data. Some parts of this discussion assume a working knowledge of quantitative research methods. Explanatory Variables—Forfeiture Laws coding with information reported in other sources93 and with that conducted by the legal research staff Each of the state forfeiture laws can be distin- at the Institute for Justice. While we are confident guished by the degree of difficulty, or measure of that these procedures produced the most accurate burden, to forfeit property and the financial incen- assessment of proceeds to law enforcement, for any tives for law enforcement to engage in forfeitures.92 statutes with some remaining vagueness, our guiding Degree of difficulty is measured by two factors— principle was to code the percentages conservatively standard of proof and innocent owner. The first and in a manner that, if inaccurate, would bias reflects the standard of proof the government is results contrary to finding a significant relationship required to meet to determine property is subject to between the percentages and forfeiture revenue col- forfeiture. This was coded as follows, where lower lected by agencies. numbers equal less burden on the state: Since the outcome variable was based on 1=prima facie/probable cause; multi-year averages, it was necessary to review all 2=probable cause and preponderance of the state statutes to determine if any statutory changes evidence; occurred to the primary variables of interest during 3=preponderance of the evidence; this time. A few states did change their forfeiture 4=preponderance and clear and convincing; laws, and these changes were entered into the data- 5=clear and convincing; set where appropriate to reflect the changes in law 6=clear and convincing and beyond a reason- affecting law enforcement agencies in those states. able doubt and 7=beyond a reasonable doubt. Control Variables As noted above, some states have two standards depending on the property. We considered these The control variables included in the analyses potentially meaningful distinctions and coded them included the number of full-time officers assigned as falling between the different standards found in to special or multi-agency drug enforcement units, the law. the arrest rate (per 100,000 population) for drug The innocent owner burden variable represents manufacturing and selling, the violent crime rate who has the burden (the state or the property owner) (per 100,000 population), law enforcement agency to establish whether the property owner qualifies as type, whether the agency was primarily responsible an innocent owner under state law. This was coded for enforcing drug laws in their respective jurisdic- as follows, where lower numbers equal less burden tion and region of the country. Table A1 lists and on the state: provides a brief description of each variable used 1=the burden to establish innocence rests exclu- along with their means and standard deviations. sively with the property owner/claimant; We controlled for the number of full-time 2=the burden varies depending on the type of officers assigned to special or multi-agency drug property being forfeited and enforcement units to examine whether such units 3=the burden rests exclusively with the gov- mediate the link between state asset forfeiture laws ernment to establish that the claimant is not and forfeiture activity. One might hypothesize, for innocent. example, that law enforcement agencies in less re- Finally, the percent of proceeds to law enforce- strictive asset forfeiture states may be more inclined ment variable was coded based upon the actual to assign a larger number of full-time officers to number (i.e., percent) reported within the state specialized drug units because doing so is likely to statute. The forfeiture distribution language within lead to more drug-related asset forfeiture activity some statutes was imprecise in terms of the actual and, eventually, additional revenue for the agency. percentage guaranteed to law enforcement. In Data on the number of full-time officers assigned to states with some vagueness, we coded the data based specialized or multi-agency drug units were ob- 105 upon our reading of the statute and compared this tained from the LEMAS dataset. We also included the arrest rate (per rape, robbery, aggravated assault) reported and 100,000 population) for drug manufactur- recorded by law enforcement agencies for 2003 ing and selling and the violent crime rate (per for each jurisdiction were also obtained from 100,000 population) in the analysis because the FBI's UCR. both of these variables may be causally ante- Two of the controls were binary variables cedent to both the type of civil asset forfeiture denoting law enforcement agency type (1=mu- statutes put in place by state policy makers and nicipal agency, 0=sheriff 's department) and the amount of drug asset forfeiture activity a ju- whether the agency was primarily responsible risdiction can reasonably be expected to engage for enforcing drug laws in their respective juris- in based on the sheer number of drug-related diction (1=yes, 0=no). Data for both variables transaction opportunities alone (i.e., more drug were obtained from the 2003 LEMAS dataset. activity, more asset forfeiture). If this were true, The last set of control variables are binary failing to control for these potentially causally dummy variables for each of the nine U.S. Cen- antecedent variables would lead to spurious (or sus regions. These variables are used to control partly spurious) associations for the state asset for any well-established and unobserved (or forfeiture law variables. Data on the number of unmeasured characteristics) of the jurisdictions persons arrested for selling and manufacturing served by law enforcement agencies that vary drugs were obtained from the Federal Bureau at the regional level and that could be expected of Investigation's (FBI) Uniform Crime Reports to influence both state asset forfeiture laws and (UCR). Similar to the outcome variables, we drug-related asset forfeiture activity. Examples used a multi-year average (2001 to 2003) to of such potential confounders would be regions solve the problem that drug activity fluctuates of the United States where drug trafficking is widely from year-to-year. Data on the num- more commonplace and regions in close prox- ber of violent crimes (i.e., homicide, forcible imity to a major port of entry for drugs. Table A1 Variables in the Analysis Variable and Brief Description Mean SD Outcome Variables Per Capita Equitable Sharing Payments from Department 0.40 0.75 of Justice, five-year average, Fiscal Years 2000 to 2004 Asset Forfeiture Law Variables Standard of Proof (Seven-point scale) 3.74 1.73 Innocent Owner Burden 1.55 0.86 Percent of Asset Proceeds to Law Enforcement 73.27 33.94 Departmental-level Control Variables Law Enforcement Agency Responsible for Drug 0.97 0.16 Enforcement, (1=Yes) Law Enforcement Agency Serves Municipality (1=Yes) 0.69 0.46 Full-time Law Enforcement Officers per 100,000 Popula- 5.68 6.36 tion, Special Drug Enforcement Unit Full-time Law Enforcement Officers per 100,000 Popula- 2.21 3.13 tion, Multi-Agency Drug Task Force Community-level Control Variables Drug Arrests for Manufacturing and Selling per 100,000 104.40 173.99 Population, Average 2001to 2003 Violent Crime Rate per 100,000 Population 487.38 464.03 106 Notes: Descriptive statistics are for all cases with valid data on a given variable. Unless otherwise noted, each variable refers to the year 2003. The mean and standard deviation for the forfeiture law variables are based on their original values (i.e., not centered). Analytic Procedures pretation of Tobit coefficients is more prob- lematic than traditional regression coefficients We used a censored regression model to is because the former must account for two determine the impact of three key components distinct types of observations on the dependent of state asset forfeiture laws on the per capita variable. The first set contains the observa- dollar value of forfeiture proceeds returned to tions, for which the dollar value of assets seized law enforcement agencies through equitable is zero. For these observations, we know only sharing payments received from the DOJ's AFF. the values of the independent variables and Censored regression models take into account the fact that the dependent variable is less than potential biases that may be present when some or equal to zero. The second set consists of all observations on the dependent variable are not observations for which the value of both the in- observable, as is the case here. In the present dependent and dependent variables are known. study, both forfeiture proceeds variables (i.e., Thus, two types of effects are modeled simul- the dependent variables) are concentrated at taneously in a Tobit regression model: (1) the the lower limit value of zero (denoting zero dol- effect on the per capita dollar value of assets lars received through asset forfeiture activity). seized for cases with a nonzero value (uncen- The appropriate censored regression model sored) and (2) the effect on the probability of in this case is the Tobit model.94 Tobit regres- having a nonzero value for cases with the limit sion estimates a linear regression model for a value of zero dollars (censored). A problem left-censored dependent variable, where the arises, however, because only a single coefficient dependent variable is censored from below. is provided in the output of a Tobit analysis More specifically, slightly more than 11 for each of the two state asset forfeiture law percent (63 out of 563) of the agencies in the variables. Clearly, however, it is not possible for study sample received no equitable sharing a single coefficient to capture both effects—one payments from the DOJ between fiscal years for cases at the lower limit value (zero dollars) 2000 and 2004. If the probability of zero dol- and another for cases above the limit value lars related to drug-related forfeitures were the (nonzero dollars). only phenomenon to explain, probit regression Fortunately, a decomposition procedure96 would provide a suitable model. Of course, this can be used to disentangle Tobit coefficients in would result in throwing away information on such a way that both different effects are quan- the value of proceeds returned when it is avail- tified: (1) the effect of state asset forfeiture laws able. That is the case here because if a law en- on the per capita dollar value of forfeiture pro- forcement agency received forfeiture proceeds ceeds returned to law enforcement agencies and related to drug offenses, we have an estimate of (2) the effect of the laws on the probability of the dollar value they received. a law enforcement agency receiving forfeiture If there were no concentrations at a lower proceeds for those agencies failing to receive limit, and we only cared to explain the dollar forfeiture proceeds associated to drug-related amount of assets forfeited, multiple regression activity. Decomposing the Tobit coefficients would be the appropriate statistical technique. provides for a more complete understanding But, since there is a piling up of values of the of the two separate effects state asset forfeiture dependent variable at a limit (in this case $0), laws can have on drug asset forfeiture activity. ordinary least squares (OLS) estimates are The Tobit regression models were estimated us- biased because the dependent variables are not ing the Tobit command in Stata Release 9.0.97 continuous and unbounded. The solution to Finally, one potential pitfall with using local this problem is a hybrid of the two regression law enforcement data in a study examining the methods (probit and OLS) which economists effects of state laws is that the law variables do refer to as Tobit models. Similar to standard not vary across jurisdictions within a particu- OLS regression, the Tobit regression model lar state. As a result, errors in predicting asset assumes the error terms are normally distrib- forfeiture are likely to be correlated within clus- uted, independent between observations and ters (i.e., states) and conventional estimates of uncorrelated with the independent variables. standard errors for the state asset forfeiture law Model parameters are estimated via maximum variables may be understated due to violations likelihood. of the independence assumption.98 To address Although it is useful to examine ordinary this problem, we used cluster-adjusted standard Tobit coefficients for sign and significance, they errors that adjust for the fact that observations are not readily interpretable as effect sizes like within states may not be independent.99 107 their OLS counterparts.95 The reason inter- Appendix B Appendix B Detailed Statistical Results This appendix provides greater detail about the equitable sharing results. The discussion assumes a working knowledge of quantitative research methods. Table B1 reports estimates for equitable shar- informative, the decomposition provides additional ing payments received per person from the DOJ. substantive information regarding the effects of The coefficient on the share of forfeiture proceeds the percent of forfeiture proceeds returned to law variable in Table B1 indicates that law enforcement enforcement on proceeds received through equitable agencies residing in generous forfeiture states receive sharing payments (per person). These results were significantly lower equitable sharing payments from discussed in the text above; the precise findings are the DOJ. Although this standard interpretation is presented in Table B1. Table B1 Effect of State Asset Forfeiture Laws on Per Capita Equitable Sharing Payments, Five-Year Average, FY 2000 to FY 2004 (2) Effect of Change in (3) (1) State Asset Forfeiture Effect of Change in State Coefficient Laws on Average Per Asset Forfeiture Laws on [Cluster Robust Capita Equitable Sharing Probability of Receiving Standard Error] Payments, Among Those Equitable Sharing Receiving Equitable Payments Sharing Payments Independent Variable Percent of Asset Pro- -.002* ceeds Returned to Law -.001* -.001* [.001] Enforcement Agency .022 State Standard of Proof .010 .010 [.020] .099* Innocent Owner Burden .046* .045* [.060] Standard Error of Estimate 0.80 Log-Likelihood Value -650.54 Chi-squared 66.56 Sample Size 563 Notes: Robust standard errors clustered at the state level are reported. * significant at .10 level. 108 With respect to the legal hurdles faced which parts of the interactions were significant, by agencies in forfeiting drug-related assets, the F tests were followed by more focused tests the coefficient on the state standard of proof (often referred to as "simple slopes" tests). The variable is in the expected positive direction. results of the tests indicated that the interaction It should be pointed out, however, that the between the state profit motive variable was coefficient is not statistically significant at significant regardless of whether state innocent conventional significance levels. On the owner statutes place the burden of proof on other hand, the coefficient for the innocent the property owner or the government. On owner variable is statistically significant in the the other hand, the only part of the interaction expected positive direction. that was significant between the state standard Next, we explored the possibility of two- of proof and the innocent owner burden way interactions between the three forfeiture occurred when the burden of proof was placed law variables. We believe there is a strong on the government, i.e., the property owner theoretical basis to expect that the effects of is presumed innocent. In addition, readers any one forfeiture law variable on equitable should note that each law variable is centered sharing payments may be moderated by values to facilitate interpretation of its marginal effect for one of the other forfeiture law variables. on equitable sharing payments when evaluated For example, agencies located in states where at different values for the other law variables. the standard of proof required by authorities to Lastly, readers should be aware that the forfeit assets is greater (e.g., beyond a reasonable interpretations provided in the text above only doubt) than the preponderance of evidence apply to agencies reporting equitable sharing requirement at the federal level may be more payments (i.e., the agency received at least one inclined to turn forfeiture cases over to federal equitable sharing payment between fiscal years authorities even if state law permits agencies 2000 and 2004). Readers interested in changes to keep a generous portion of the forfeited in the probability of receiving equitable sharing proceeds. Conversely, agencies located in more payments for those agencies not receiving generous states with similar standard of proof payments should focus their attention on the requirements for seizing assets may be less coefficients presented in column (3). inclined to turn cases over to federal authorities. The results of the interaction analysis are reported in Table B2. These interactions must be interpreted with care. Most importantly, the statistical significance of each law variable in isolation cannot be determined by looking at their t-statistics (coefficient divided by standard error) separately. In other words, the fact that the coefficient for the innocent owner variable is not significant does not mean this aspect of forfeiture restrictiveness does not have a significant impact on equitable sharing payments. Rather, the statistical significance of each law variable can only be determined when testing its importance in conjunction (referred to as a joint hypothesis test) with the interaction terms of which it is a part. In this case, the F test of the joint hypothesis for both interactions involving the law variable measuring innocent owner burden were statistically significant. To determine exactly 109 Table B2 Examining Interaction Effects Between Share of Asset Proceeds Returned to Law Enforcement Agency and Standard of Proof on Per Capita Equitable Sharing Payments, 5-Year Average, FY 2000 to FY 2004 (2) Effect of Change in (1) (3) State Asset Forfeiture Coefficient Effect of Change in Laws on Average [Cluster State Asset Forfeiture Per Capita Equitable Robust Laws on Probability of Sharing Payments, Standard Receiving Equitable Among Those Error] Sharing Payments Receiving Equitable Sharing Payments Independent Variable Percent of Asset Proceeds .001 Returned to Law Enforcement .0003 .0003 [.001] Agency Standard of Proof .054* [.015] .025* .025* -.017 Innocent Owner Burden -.008 -.008 [.062] Percent of Asset Proceeds Returned to Law Enforcement .0006 .0003 .0003 Agency x State Standard of [.0004] Proof Percent of Asset Proceeds Returned to Law Enforcement .003* [.001] .002* .002* Agency x Innocent Owner Burden State Standard of Proof x .066* [.013] .031* .030* Innocent Owner Burden Standard Error of Estimate 0.80 Log-Likelihood Value -648.24 Chi-squared 241.86 Sample Size 563 Notes: Robust standard errors clustered at the state level are reported. * significant at .10 level. activity areas are also located in more gener- Table B3 examines whether the inter- ous forfeiture states. On the other hand, the actions observed in Table B2 persist after coefficient for the violent crime rate variable in- controlling for potential confounding factors. dicates agencies embedded in high crime areas With respect to the control variables, the most receive significantly greater equitable sharing notable finding is the negative, albeit nonsignifi- payments from DOJ. Lastly, the dummy vari- cant association between the drug arrest rate able for agency type shows that municipal agen- and equitable sharing payments. The most cies receive larger equitable sharing payments likely explanation is that agencies in high drug than sheriff 's offices. 110 Table B3 Effect of State Asset Forfeiture Laws on Equitable Sharing Payments, Controlling for Potential Confounding Factors (2) Effect of Change in (1) (3) State Asset Forfeiture Coefficient Effect of Change in Laws on Average [Cluster State Asset Forfeiture Per Capita Equitable Robust Laws on Probability of Sharing Payments, Standard Receiving Equitable Among Those Error] Sharing Payments Receiving Equitable Sharing Payments Independent Variable Percent of Asset Proceeds Returned .001*** [.001] .001*** .001*** to Law Enforcement Agency Standard of Proof .063** [.015] .030** .030** -.056 Innocent Owner Burden -.026 -.026 [.059] Percent of Asset Proceeds Returned .0008*** to Law Enforcement Agency x State .0004*** .0004*** [.0004] Standard of Proof Percent of Asset Proceeds Returned to Law Enforcement Agency x In- .004*** [.001] .002*** .002*** nocent Owner Burden State Standard of Proof x Innocent .058*** [.013] .027*** .028*** Owner Burden Law Enforcement Agency Re- .340* sponsible for Drug Enforcement, .142* .172* [.181] (1=Yes) Law Enforcement Agency Serves .192 .089 .093 Municipality, (1=Yes) [.089] Full-time Law Enforcement Offi- .002 cers Per 100,000 Population, Special .001 .001 [.004] Drug Enforcement Unit Full-time Law Enforcement Of- .018 ficers Per 100,000 Population, Multi- .009 .009 [.012] Agency Drug Task Force Drug Arrests for Manufacturing and Selling per 100,000 Population, -.0003 [.0002] -.0002 -.0002 3-Year Average, 2001to 2003 Violent Crime Rate per 100,000 .0004*** [.0001] .0002*** .0002*** Population Standard Error of Estimate 0.76 Log-Likelihood Value -620.66 Chi-squared 366.41 Sample Size 563 111 Notes: Coefficient estimates for census region dummies are not shown. Robust standard errors clustered at the state level are reported. * significant at .10 level; **significant at .05 level; ***significant at .01 level. Of course, the most important results in Table B3 pertain to the importance of the interactions observed in Table B2 when addressing potential omitted variable bias. The results for the two-way interaction terms between the innocent owner defense variable and the remaining two law variables remain largely unaffected when controlling for potential confounding factors. 112 Endnotes Press; Buchanan, J. M. (1991). Constitutional economics. Cambridge, MA: Basil Blackwell. 1 Boudreaux, D. J., & Pritchard, A. C. (1996). 14 Boudreaux and Pritchard, 1996, p. 91. Civil forfeiture and the war on drugs: Lessons from economics and history. San Diego Law Review, 33, 79- 15 Mast, B. D., Benson, B. L., & Rasmussen, D. 135. W. (2000). Entrepreneurial police and drug enforce- ment policy. Public Choice, 104, 285–308. 2 Id. 16 Hyde, H. (1995). Forfeiting our property rights: Is 3 Id. your property safe from seizure? Washington, D.C.: Cato Institute, p. 6. 4 Id.; Schecter, M. (1990). Fear and loathing and the forfeiture laws. Cornell Law Review, 75, 1151-1183; 17 The U.S. Department of Justice defines forfeiture Maxeiner, J. R. (1977). Bane of American forfeiture as "the taking of property derived from a crime, law: Banished at last? Cornell Law Review, 62(4), 768- involved in a crime, or that which makes a crime 802. easier to commit or detect without compensating the owner," although, as discussed in this report, the 5 Maxeiner, 1977, p. 782. degree of certainty required to demonstrate an asso- ciation with criminal conduct varies and is a matter 6 See, e.g., The Palmyra, 25 U.S. (12 Wheat.) 1 of some controversy, United States Department of (1827). Justice. (2009). Guide to equitable sharing for state and local law enforcement agencies. Washington, D.C., p. 8. 7 See United States v. Brig Malek Adhel, 43 U.S. (2 How.) 210, 233 (1844). 18 Cassella, S. (2007). Overview of asset forfeiture law in the United States. United States Attorneys' 8 Id. (emphasis added). Bulletin, 55, 8-21, emphasis in original, p.14. 9 Comprehensive Crime Control Act of 1984, 19 Edgeworth, D. (2008). Asset forfeiture: Practice and Public Law No. 98-473, 98 Stat. 1837 (1984). procedure in state and federal courts. Chicago: American Bar Association; Williams, M. (2002). Civil asset 10 Some of these expenses included "equipping forfeiture: Where does the money go? Criminal Justice for law enforcement functions any Government- Review, 27, 321-329. owned or leased vessel, vehicle, or aircraft" and paying the "overtime salaries, travel, fuel, training, 20 The U.S. Department of Justice indicates that equipment, and other similar costs of State or local the primary mission of its Asset Forfeiture Program law enforcement officers that are incurred in a is "to prevent and reduce crime by disrupting, joint law enforcement operation with a Federal law damaging, and dismantling criminal organizations enforcement agency. . . participating in the Fund." through the use of the forfeiture sanction. This is 28 U.S.C. §§ 524(c)(1)(F)(i), (c)(1)(i)(I) (2009). accomplished by means of depriving drug traffick- ers, racketeers, and other criminal syndicates of their 11 Public Law No. 106-185, 114 Stat. 202 (2000). ill-gotten proceeds and instrumentalities of their trade," United States Department of Justice. (2008b). 12 Among other modest changes, CAFRA shifted Asset forfeiture fund and seized asset deposit fund annual the burden of proof in a forfeiture hearing from financial statement: Fiscal Year 2007. Washington, DC, the claimant to the government, eliminated the p. 3. Another forfeiture proponent maintains that requirement that claimants post a cost bond before asset forfeiture allows the government to be more ef- being able to contest a civil forfeiture in court, and fective in prosecuting major offenders and removing provided representation for indigent claimants under their sources of income; Williams, H. (2002a). Asset certain circumstances. forfeiture: A law enforcement perspective. Springfield, IL: Charles C. Thomas. 13 Buchanan, J. M., & Tullock, G. (1962). The calculus of consent: Logical foundations of constitutional 21 Cassella, 2007; Edgeworth, 2008; United democracy. Ann Arbor, MI: University of Michigan States Department of Justice, 2008b. In recent 113 years, the federal government has prevailed in 24 Benson et al., 1995; Blumenson and Nilsen, several major financial criminal cases that resulted in 1998; Duffy, M. (2001). Note: A drug war funded forfeitures totaling over $1 billion (U.S Department with drug money: The federal civil forfeiture statute of Justice, 2008b). These funds were used to return and federalism. Suffolk University Law Review, 34, millions of dollars to victims of these crimes. 511-540; Hadaway, 2000; Worrall, 2001; Worrall, Despite this, few would argue that asset forfeiture, J. (2004). The Civil Asset Forfeiture Reform Act of especially the seizure activities of state and local law 2000: A sheep in wolf 's clothing? Policing: An Inter- enforcement, has been most commonly associated national Journal of Police Strategies and Management, 27: with government efforts in the war on drugs (Benson, 220-240. B., Rasmussen, D., & Sollars, D. (1995). Police bureaucracies, their incentives, and the war on drugs. 25 The method for distinguishing state asset for- Public Choice, 83, 21-45; Blumenson, E. & Nilsen, E. feiture laws as reported in Tables 1-3 was based on (1998). Policing for profit: The drug war's hidden the following research strategy. First, the authors re- economic agenda. University of Chicago Law Review, viewed the civil forfeiture asset statutes in each of the 65, 35-114; Edgeworth, 2008; Hadaway, B. (2000). 50 states and coded each of these measures based on Executive privateers: A discussion on why the Civil legal distinctions similar to those reported in Sorens, Asset Forfeiture Reform Act will not significantly J., Muedini, F., & Ruger, W. (2008). State and local reform the practice of forfeiture. University of Miami public policies in 2006: A new database. State Politics Law Review, 55, 81-121). Since drug offenders are and Policy Quarterly, 8, 309-326. Next, several sources easily replaceable, just removing the offender without (most notably Edgeworth, 2008, Worrall, 2004, and also removing the proceeds from their activities Sorens et al., 2008) that reported similar informa- arguably does little to stop the drug trade. The tion were compared for each measure for all states threat of losing property associated with criminal to minimize errors. Where conflicts arose between activity purportedly increases the deterrent value of our determination and that of another source, we enforcement and prosecutorial efforts (see Vecchi, G. independently reviewed the existing state statutes & Sigler, R. (2001). Assets forfeiture: A study of policy and and compared findings. There were very few differ- its practice. Durham, NC: Carolina Academic Press). ences between our coding and that reported in other Cassella (2007) argues that, "Taking the criminals' sources. The differences that did exist were typically toys away… not only ensures that the criminal the result of either errors by previous researchers or enterprise is deprived of its economic resources and their focus on a different aspect of forfeiture laws. makes funds available for restitution to the victims, but it also sends a signal to the community that the 26 For this table, any percentage of funds required benefits of a life of crime are illusory and temporary to be allocated to prosecutors and district attorneys at best" (pp. 8-9). were included as "law enforcement." Few states require a specific percentage of net proceeds to be 22 H. Williams, 2002; Cassella, 2007; Edgeworth, allocated to prosecutors and, where present, are 2008. typically marginal (see Edgeworth, 2008, Table 10-1). Some states, however, require all forfeiture proceeds 23 Edgeworth (2008) notes that law enforcement to be distributed by the district attorney associated funds can be expended in six general areas: person- with the seizing agency, and other states' statutes nel costs (e.g., for community-oriented policing activ- are quite vague about the distinction between ities and overtime associated with drug enforcement distributions to law enforcement and prosecutorial activities), equipment, matching federal grants such operations. Given the importance of cooperative as to pay officer salaries assigned to task forces, infor- relationships between police and prosecutors in mant fees, buy money for drug operations, and other forfeiture activities and the lack of distinction in activities such as training, educational expenses, and many statutes, prosecution and district attorney drug education programs. The U.S. Department allocations were included in law enforcement of Justice (2009) identifies a number of permissible percentages. Examples of required allocations that uses for equitably shared assets, including operating were not counted as "law enforcement" include costs associated with criminal investigations, training, drug treatment programs, court expenses and drug equipment, travel and transportation costs associ- education programs (e.g., D.A.R.E. programs). The ated with law enforcement duties, and accounting latter was identified in many statutes as an activity expenses associated with forfeiture activities. that "may" be funded with forfeiture proceeds, but 114 very few required a specific percentage of net proceeds to be allocated to such programs. Department targets assets in all cases with "forfeiture potential." Retrieved from organization website at 27 All state and the federal forfeiture statutes http://assetforfeiturewatch.com. provide for the initial deduction of certain costs and expenses from the gross proceeds of forfeited 36 AssetRecoveryWatch.com promotes itself as assets. The required expenses to be covered vary but "the indispensible source of news, information, may include property management costs, forfei- and training for law enforcement professionals and ture processing expenses, reimbursement of third others working in the asset forfeiture field." It is party interests and victim restitution. Given that understandable that some lawyers would market all jurisdictions require initial costs to be deducted themselves as specializing in assisting property from gross forfeiture revenue, these may be best owners to defeat forfeiture efforts. What may considered the percentage of net proceeds that are be unexpected is the cottage industry that has minimally allocated to law enforcement. developed. In addition to AssetRecoveryWatch. com, the International Association for Asset 28 Benson et al., 1995; Blumenson and Nilsen, Recovery (IAAR) claims its mission "is to enhance 1998; Worrall, 2001. the capabilities and standards of professionals and agencies worldwide in the battle to win back assets 29 Benson et al., 1995; Burnett, J. (2008c). Deputy that rightfully belong to governments, organizations has Midas touch in asset seizures. National Public Ra- or individuals victimized by criminal or wrongful dio: Dirty money: Asset seizures and forfeitures. Retrieved conduct"; International Association for Asset April 14, 2009 from www.npr.org/templates/story/ Recovery (IAAR). (2009). Official website. Retrieved story.php?storyId=91582619; Vecchi and Sigler, from http://www.iaaronline.org/me2/default.asp. 2001. Asset forfeiture appears to have become a revenue generator not only for law enforcement but also for 30 While forfeiture activities certainly vary across independent contractors and organizations affiliated jurisdictions, it appears that many law enforcement with such activities. agencies consider asset forfeiture to be an essential revenue stream (Burnett, J. (2008a). Seized drug 37 Worrall, 2001. assets pad police budgets. National Public Radio: Dirty money: Asset seizures and forfeitures. Retrieved April 14, 38 Miller, M. & Selva, L. (1994). Drug enforce- 2009 from www.npr.org/templates/story/story. ment's double-edged sword: An assessment of asset php?storyId=91490480; Burnett, J. (2008b). Cash forfeiture programs. Justice Quarterly, 11, 313-335. seizures by police prompt court fights. National Public Radio: Dirty money: Asset seizures and forfeitures. 39 Miller and Selva, 1994, p. 325. Retrieved April 14, 2009 from www.npr.org/tem- plates/story/story.php?storyId=91555835; Burnett, 40 Blumenson and Nilsen, 1998; Worrall, 2001. 2008c; Burnett, J. (2008d). Sheriff under scrutiny over drug money spending. National Public Radio: 41 Blumenson and Nilsen, 1998; Miller and Selva, Dirty money: Asset seizures and forfeitures. Retrieved April 1995. 14, 2009 from www.npr.org/templates/story/story. php?storyId=91638378; see also Worrall, 2001; 42 Blumenson and Nilsen, 1998; Benson et al., Benson et al., 1995). 1995; Miller and Selva, 1995. 31 Burnett, 2008a-d. 43 Gaumer, C. (2007). A prosecutor's secret weapon: Federal civil forfeiture law. United States At- 32 Burnett, 2008d. torneys' Bulletin, 55, 59-73, quote from p. 59. 33 Vecchi and Sigler, 2001, p. 75. 44 The NDAA states that "law enforcement agencies and prosecutors should aggressively pursue 34 Originally in Hyde, H. (1995). Forfeiting our prop- forfeiture actions to eliminate the instrumentalities of erty rights. Washington, D.C.: Cato Institute, quoted in crime and to confiscate the proceeds from criminal Vecchi and Sigler, 2001, p. 75. acts" (found in Edgeworth, 2008, p. 294). 35 AssetRecoveryWatch.com (2009). Justice 45 Edgeworth, 2008. 115 46 Vecchi and Sigler, 2001. als are unwilling or unable to risk personal resources for attorney's fees (Burnett, 2008b; Worrall, 2004). 47 Burnett, 2008a. Overcoming prosecutorial efforts and resources, bureaucratic red tape and insuring compliance with 48 Blumenson and Nilsen, 1998; Hyde, 1995; statutory requirements may be simply too much for Levy, 1996; Worrall, 2004. many property owners. 49 Blumenson and Nilsen, 1998. 53 See Benson et al., 1995; Blumenson and Nilsen, 1998. 50 Blumenson and Nilsen, 1998. 54 Bennis v. Michigan, 516 U.S. 442 (1996). 51 Similarly, pressure from law enforcement interest groups watered down important provisions 55 United States Department of Justice, 2009, p. of the bill that eventually became the federal Civil 6. Asset Forfeiture Reform Act (2000). In addition, the law enforcement lobby was able to add provisions 56 The Department of Justice Assets Forfeiture that actually strengthened forfeiture powers in some Fund accepts funds from the majority of federal law circumstances (see Worrall, 2004; Edgeworth, 2008). enforcement agencies, including the FBI, DEA and Such efforts cannot be satisfactorily explained by ATF. The Treasury Forfeiture Fund accepts deposits altruistic concerns for the public good, since Con- from Treasury agencies, such as the Secret Service, gress and state legislators are presumably interested and financial and consumer agencies within the in the public good as well. Concerns about limits on federal government. their ability to self-generate revenue for operational, administrative and organizational expenses clearly 57 Blumenson and Nilsen, 1998; Duffy, 2001; play a role in law enforcement's continuing efforts Hadaway, 2001; Levy, 1996; Worrall, 2004. to defeat reforms aimed at restricting forfeiture activities (Blumenson and Nilsen, 1998; Dunn, K. 58 Cassella, 2007; United States Department of (n. d.). Reining in forfeiture: Common sense reform Justice, 2008b. in the war on drugs. Retrieved August 12, 2009 from www.pbs.org/wgbh/pages/frontline/shows/ 59 Edgeworth, 2008. drugs/special/forfeiture.html; Weiser, J. (2000). Commentary: Civil forfeiture laws are rife with 60 Blumenson and Nilsen, 1998; Levy, 1996. abuse. Originally published in Newsday of Long Island, retrieved from http://archive.southcoasttoday.com/ 61 United States Department of Justice, 2009. daily/06-00/06-11-00/a10op041.htm). 62 Blumenson and Nilsen, 1998; Hadaway, 2001; 52 There are other legal protections, not ad- United States Department of Justice, 2009. dressed in this report, that make it easier for property owners to defend their property. Critics point out, 63 Blumenson and Nilsen, 1998; Hadaway, 2001. however, that these are typically minimal and may be quite obscure and difficult for some owners to 64 Vecchi and Sigler, 2001. comprehend (Blumenson and Nilsen, 1998; Worrall, 2004). Furthermore, state and federal courts have 65 Edgeworth, 2008, p. 248; see also Duffy (2001) consistently ruled that there is no constitutional right and von Kaenel, F. (1994). Recent development: to counsel in forfeiture proceedings (Edgeworth, Missouri ups the ante in the drug forfeiture 'race to 2008). CAFRA provides for counsel in a very limited the res.' Washington University Law Quarterly, 72, 1469- number of federal forfeiture circumstances, while 1486. Utah and New Mexico provide for indigent counsel in forfeiture cases more generally. Otherwise, indi- 66 United States Department of Justice. (2008a). viduals are typically required to provide for their own Manual: Asset forfeiture policy manual. Washington, D.C. legal representation. The federal government and a few states award attorney fees in cases in which the 67 U.S. Department of Justice, 2008a, p. H-2. property owner ultimately prevails. Even in these 116 limited jurisdictions, critics note that some individu- 68 A very limited number of states (see Edge- worth, 2008; von Kaenel, 1996) have statutory non-self-representing (NSR) agencies (1,539 local language that places seized property immediately police departments and 660 sheriffs' offices) with under the jurisdiction of the local court. The result less than 100 sworn personnel. The stratification is that law enforcement cannot transfer this property variables used for the NSR agencies included the until the court signs a turnover order releasing the type of agency (local or sheriff), size of population property to the federal government. While this does served and number of sworn personnel. The overall not guarantee that courts will critically review such response rate for the 2003 LEMAS survey was 90.6 requests, it does represent an additional burden to percent (n=2,859 agencies). state and local law enforcement for adoptive forfei- tures in those jurisdictions. It appears that state and 76 The actual question is, "Enter the total local law enforcement agencies, however, can avoid estimated value of money, goods, and property turnover requirements by engaging in joint investiga- received by your agency from a drug asset forfeiture tive operations with agencies in different jurisdictions program during calendar year ____" (previous (federal or state) that would be the seizing agency of calendar year). record. In such cases, state and local law enforce- ment agencies would receive a portion of forfeiture 77 LEMAS data are publicly available from the proceeds without being subject to state restrictions. National Archive of Criminal Justice Data at http:// www.icpsr.umich.edu/NACJD/lemas/. 69 Worrall, J. & Kovandzic, T. (2008). Is policing for profit? Answers from asset forfeiture. Criminology 78 Federal seizures and state and local seizures and Public Policy, 7, 219-244. accepted for equitable sharing by agencies participating in the Department of Justice forfeiture 70 Burnett, 2008a-d. program are initially deposited into the Seized Asset Deposit Fund. These assets are not moved into the 71 Blumenson and Nilsen, 1998; Vecchi and Assets Forfeiture Fund until they are declared forfeit Sigler, 1994. and ownership transfers to the federal government. It appears that Treasury seizures are immediately 72 Dunn, n. d.; see also von Kaenel, 1994. deposited in the Treasury Forfeiture Fund. Unless otherwise noted, only forfeited assets are counted in 73 Blumenson and Nilsen, 1998; Duffy, 2001. the totals reported here. 74 Blumenson and Nilsen, 1998; Burnett, 2008a- 79 These figures were determined from the d. LEMAS data using sample weights. The unweighted data indicate proceeds of $564,363,864 in 2000 and 75 LEMAS data are based on a sample that $414,573,647 in 2003. includes all state police agencies (i.e., state trooper or highway patrol) and local police agencies with 80 U.S. Department of Justice, 2008, p. 7. 100 or more full-time sworn officers. In addition, a nationally representative sample of smaller police 81 U.S. Department of Justice. (1997). Annual agencies is selected for participation. The 2003 report of the Department of Justice asset forfeiture LEMAS sample was mailed out to 3,154 agencies program: Fiscal years 1995 and 1996. Washington, in December 2003. The sampling frame for the D.C. This report refers to "net deposits," language 2003 LEMAS survey was the 2000 census of state not used in later Fund reports detailed in this study. and local law enforcement agencies (CSLLEA). Of the 3,154 agencies surveyed, 955 employed 100 or 82 http://www.ojp.usdoj.gov/bjs/eande.htm. more sworn officers as of June 30, 2000. These 955 self-representing (SR) agencies included 574 83 By contrast, according to the LEMAS data local police departments, 332 sheriffs' offices and reported for 2000 and 2003, forfeitures declined by 49 state law enforcement agencies. Self-reporting $133 million (using weighted data) in that three- agencies in the LEMAS survey were defined as those year span. Part, but not all, of the decline may be agencies with 100 or more sworn full-time equivalent accounted for by the fact that 126 fewer agencies (FTE) employees and all state police agencies. The responded to the 2003 LEMAS survey than in 2000. SR agencies were supplemented by a nationally A more likely explanation is the impact of the federal representative stratified random sample of 2,199 CAFRA reform bill passed in 2000. The LEMAS 117 survey asks for previous calendar-year figures, so to be an enviable lifestyle. Criminals typically spend data are essentially for the year prior to the sur- their spoils on expensive homes, airplanes, electronic vey—1999 and 2002. Government officials have goods, and other 'toys' that everyone wants. Taking acknowledged significant reductions in forfeitures the criminals' toys away… not only ensures that between 2000 and 2002 and often attribute this to the criminal enterprise is deprived of its economic preemptive concerns about CAFRA limitations on resources and makes funds available for restitution to forfeiture activities, as well as increasing attention the victims, but it also sends a signal to the commu- to homeland security following the terrorist attacks nity that the benefits of a life of crime are illusory of September 11, 2001 (Edgeworth, 2008; United and temporary at best" (pp. 8-9). States Department of Justice. (2002). Asset forfeiture fund and seized asset deposit fund annual financial statement: 88 Another prohibitive issue in using the LEMAS Fiscal year 2002. Washington, D.C.). There is a strong data was the "self-referential" nature of one of the likelihood, if the trends in Table 8 are indicative, that measures of the law in relation to the forfeiture LEMAS data after 2003 will show a sharp increase proceeds as measured by LEMAS. Specifically, the in forfeiture proceeds. LEMAS question that asks about forfeiture proceeds is likely interpreted to be asking for the amount 84 Walters, J. P. (2002, October 2002). Drug use received by the agency through a drug forfeiture trends. Retrieved October 28, 2009, from http:// program after an administrative or court process www.whitehousedrugpolicy.gov/publications/fact- decides on the disposition of property—in other sht/druguse/drugusetrends.pdf. words, net forfeiture revenue rather than total assets seized in a given year. This means the relationship 85 U.S. Census Bureau. (2009). 2009 Statistical between the percentages measure and the forfeiture Abstracts of the United States. Washington, D.C. Spe- proceeds outcome used in this analysis would be cifically, the number of drug arrests has increased perfectly correlated by default. 39 percent between 2000 and 2005. This figure represents the increase in the number of suspects 89 Equitable sharing payments for fiscal years arrested for federal drug offenses and booked by (ending September 30) 2000 to 2004 were obtained the U.S. Marshals Service. According to Statistical from audited reports overseen by the Office of the Abstracts, "Persons suspected of violating Federal law Inspector General and are available online at usdoj. may be arrested by any one of the many Federal gov/jmd/afp/02fundreport/index.htm. agencies empowered to make arrests, or by State or local authorities. Regardless of which agency makes 90 In this analysis, states and their laws were the arrest, Federal suspects are typical transferred coded consistent with Tables 1, 2 and 3, except for to the custody of the U.S. Marshals Service for Oregon, Colorado and Utah. In each of these three booking, processing and detention" (p. 198). As a states, forfeiture laws changed throughout the late- result, this makes the 39 percent figure most relevant 1990s and into the mid-2000s. For the analysis of when discussing the amount of money in the federal equitable sharing, these states were coded consistent assets forfeiture fund. However, if non-federal drug with the laws in effect during the time span covered arrests are considered, the increase could be as much in our analysis. Specifically, Colorado agencies 96 percent between 1985 and 2006 (using figures received 100 percent of forfeiture, standard of proof from the 1987 and 2009 Statistical Abstracts). Finally, was coded as preponderance of the evidence and according to the 2009 Statistical Abstracts, total crime the owner had to prove innocence. Oregon agencies between 1985 and 2006 decreased by eight percent. received 92 percent of forfeiture, and standard of See also, http://www.ojp.usdoj.gov/bjs/glance/ proof was prima facie. Finally, Utah agencies kept drug.htm, for the increase in drug arrests from 1970 zero percent of forfeiture. to 2007. 91 In order to make interpretation of the 86 Cassella, 2007; Edgeworth, 2008; H. Williams, statistical results easier and to minimize harmful 2002. collinearity problems between the three state forfeiture law variables in models including 87 Cassella (2007) argues, "[T]here is also the interaction terms, all three forfeiture law variables matter of the message that is sent to law abiding were centered. "Centering" means that a single citizens when a notorious gangster or fraud artist is value is subtracted from all of the data points. In 118 stripped of the trappings of what may have appeared our case, we subtracted, 50, four and two, from the forfeiture law variables measuring standard of proof required, innocent owner burden and profit motive, respectively. By centering the variables this way, the coefficients for the law variables have easy- to-understand interpretations—they are the partial effects for each law variable when evaluated at their medians (i.e., mid-point values). Centering the variables also makes interpretation of the interaction terms easier to understand. 92 See generally, Edgeworth, 2008; Sorens et al, 2008; Worrall and Kovandzic, 2008. The coding strategy for the burden variables was similar to that utilized by Sorens et al., 2008. 93 E.g., Edgeworth, 2008. 94 Tobin, J. (1958). Estimation of relationships for limited dependent variables. Econometrica, 26, 24-36. 95 Wooldridge, J. (2005). Introductory econometrics: A modern approach, 3rd edition. Florence, KY: South- Western College Publishing. 96 McDonald, J. F. & Moffitt, R. A. (1980). The uses of tobit analysis. The Review of Economics and Statistics, 62, 318-321. 97 Stata Statistical Software: Release 9. College Station, TX: StataCorp LP. 98 Moulton, B. R. (1990). An illustration of a pitfall in estimating the effects of aggregate variables in micro units. Review of Economics and Statistics, 72, 334-338. 99 Williams, R. (2000). A note on robust variance estimation for cluster-correlated data. Biometrics, 56, 645–646. 119 Marian R. Williams, Ph.D. Assistant Professor, Department of Government and Justice Studies; Appalachian State University Since 2008, Dr. Williams has served as an Assistant Professor in the Department of Govern- About the Author ment and Justice Studies at Appalachian State University. Previously, Williams was Assistant and Associate Professor of Criminal Justice at Bowling Green State University. While at BGSU, she taught courses on the criminal courts, criminal law and procedure, and race, class and gender in the administration of justice and was heavily involved in the creation of the program's Master's Degree in Criminal Justice. Williams has co-authored two books, and her research has been featured in a number of peer-reviewed journals, including Criminology, Justice Quarterly, Journal of Criminal Justice and Homicide Studies. Her research interests include the appli- cation of the death penalty and the impact of race, class and gender on court processes. She received her B.A. in Journalism from the University of Georgia, followed by the M.S. and Ph.D. in Criminology and Criminal Justice from Florida State University. Jefferson E. Holcomb, Ph.D. Assistant Professor, Department of Government and Justice Studies; Appalachian State University Dr. Holcomb is an Assistant Professor of Criminal Justice in the Department of Government and About the Author Justice Studies at Appalachian State University. Holcomb has also taught at Florida State Univer- sity and Bowling Green State University, where he was an Associate Professor of Criminal Justice and a Senior Research Fellow at the Social Philosophy and Policy Center at BGSU. Holcomb's publications have appeared in journals such as Criminology, Justice Quarterly and the Journal of Criminal Justice on a range of topics, including the application of the death penalty, the use of criminal justice discretion and crime prevention. He received his undergraduate degree in Criminology from Auburn University. Prior to attending graduate school, he worked as a probation and parole officer for the state of Florida. He received his M.S. and Ph.D. (in 2000) in Criminol- ogy and Criminal Justice from Florida State University. Tomislav V. Kovandzic, Ph.D. Associate Professor of Criminology, School of Economic, Political and Policy Sciences; About the Author University of Texas at Dallas Dr. Kovandzic is an Associate Professor of Criminology in the School of Economic, Political and Policy Sciences at the University of Texas at Dallas. His research interests include the impact of firearms and gun control on violence, deterrence, incapacitation, crime control and structural correlates of violence. His work has appeared in Criminology, Justice Quarterly, Crimi- nology & Public Policy and other journals. Kovandzic received his Ph.D. in Criminology from Florida State University in 1999. Scott Bullock Senior Attorney, Institute for Justice Scott Bullock joined the Institute for Justice at its founding in 1991 and now serves as a senior attorney. Although he has litigated in all of the Institute's areas, his current work focuses on prop- About the Author erty rights and economic liberty cases in federal and state courts. In property rights, Bullock has been involved in many cases challenging the use of eminent do- main for private development. He argued the landmark case Kelo v. City of New London, one of the most controversial and widely discussed U.S. Supreme Court decisions in decades. He also served as lead counsel on the Institute's challenges to abusive civil forfeiture schemes in New Jersey and Utah. Bullock's articles and views on constitutional litigation have appeared in a wide variety of media. He has published articles in The New York Times and The Wall Street Journal, and he has appeared on 60 Minutes, ABC World News and National Public Radio, among many other publications and broadcasts. He received his law degree from the University of Pittsburgh and his B.A. in economics and philosophy from Grove City College. Acknowledgments Drs. Williams, Holcomb and Kovandzic would like to thank Mark Schaffer for his helpful com- ments and Paul Ford, Michael Chase and Steve DiGiantommaso for their assistance with data entry. Bullock would like to thank Mike Benz, Adam Doverspike and Josh Hess for assistance with legal research. "This comprehensive statistical and legal study of civil forfeiture in all 50 states is a major contribution to understanding the profit motive driv- ing state and federal forfeiture efforts. The authors grade the civil forfei- ture laws and practices of each state and few get good grades. A must-read for policy makers." -DaviD B. Smith, EngliSh anD Smith, alExanDria, va; FormEr DEputy ChiEF oF thE aSSEt ForFEiturE oFFiCE oF thE u.S. DEpartmEnt oF JuStiCE; author oF proSECution anD DEFEnSE oF ForFEiturE CaSES "Government abuse is one of the tragic themes of modern America. Right now, a rising tide of asset forfeitures has become a way for fiscally chal- lenged governments to fill their coffers at the expense of innocent citi- zens. In Policing for Profit, the authors offer a hard-hitting, state-by-state account of a growing government abuse. This tightly reasoned document is a call for action by legislatures, citizens and, in the last resort, the Su- preme Court." -riCharD a. EpStEin, JamES parkEr hall DiStinguiShED SErviCE proFESSor oF law, univErSity oF ChiCago law SChool "This timely report shines a necessary spotlight on the troubling and under-documented problem of asset forfeiture abuse, which disproportion- ately impacts people of color. Its review of asset forfeiture laws and prac- tices in the 50 states illustrates why advocates of all political stripes are coming together to demand smart reform of these laws in order to prevent further abuse." -vanita gupta, amEriCan Civil liBErtiES union "The late Henry Hyde considered the way many law enforcement agen- cies abuse civil asset forfeiture laws for their own profit an affront to the constitution and a free people. Anyone … conservative, liberal, Republi- can or Democrat … who reads this new study will share his outrage. More important, armed with the empirical evidence of abuse the authors have compiled, it ought to be possible to finally enact the real reforms for which Hyde fought so hard. The study should be read and the evidence it con- tains should be acted upon." -DaviD kEEnE, amEriCan ConSErvativE union Institute for Justice The Institute for Justice 901 N. Glebe Road Suite 900 The Institute for Justice is a nonprofit, public interest law firm that litigates to secure economic Arlington, VA 22203 liberty, school choice, private property rights, freedom of speech and other vital individual liberties and to restore constitutional limits on the power of government. Founded in 1991, IJ www.ij.org is the nation's only libertarian public interest law firm, pursuing cutting-edge litigation in the courts of law and in the court of public opinion on behalf of individuals whose most basic p 703.682.9320 rights are denied by the government. f 703.682.9321