Civil Asset Forfeiture in the States
Civil asset forfeiture is an in rem (against the property) proceeding, in which property is seized but no criminal charges are brought against the owner. Critics often point to the lack of evidence necessary to seize assets, because nearly 90 percent of civil forfeiture cases are not accompanied by a criminal prosecution. Opponents have also tagged the practice as “predatory public finance” and “policing for profit,” because state and local law enforcement agencies receive most of the proceeds, distorting the incentives of police and potentially wasting resources.
In 2014, $4.2 billion of cash deposits were made to the U.S. Department of Justice’s asset forfeiture fund (AFF) by local and state law enforcement agencies. The federal equitable sharing program, which began in 1984 with enactment of the Comprehensive Crime Control Act (CCCA), allows local and state law enforcement agencies to keep a portion of the funds seized, generally 80 percent. The AFF keeps the rest.
The effect of different state policies on the level of asset forfeiture can be examined using data from the Law
Enforcement Management and Administrative Statistics survey (LEMAS) for 1997, 2000 and 2003. Additionally, in 2000, roughly 70 percent of Utah voters approved an initiative which reformed the state’s civil forfeiture laws, eliminating the distribution of proceeds to law enforcement agencies beginning in 2001. The differences in state civil asset forfeiture policies, and the policy change in Utah, were exploited by this author to construct an econometric model in order to estimate the causal effects of the reform. The results:
- As one might expect, a state having a lower burden of proof, other things being equal, has higher levels of forfeitures.
- A 10 percent increase in the number of officers in an agency, other things equal, is associated with a 12 percent increase in the value of forfeitures.
- A 10 percent increase in the use in a state of cocaine, marijuana or other drugs were correlated with an estimated 15 percent increase, 7 percent decrease and 4 percent increase, respectively, in the value of forfeitures.
- Specifically, Utah’s reform was associated with an estimated 90 percent to 99 percent reduction in forfeitures.
These results suggest that law enforcement agencies nearly completely eliminate the use of civil forfeiture as a law enforcement tool when they do not stand to benefit from the seizure activities. The facts bear out these results: prior to the civil forfeiture reform, 20 percent of Utah agencies seized assets. After the reform was enacted, less than 5 percent of agencies partook in civil forfeiture, with the average per-agency value of seizures falling to nearly one-fourth of the prereform level.
In order to protect the property rights of citizens and safeguard them from the abuses of forfeiture laws, legislatures ought to follow the recent example of New Mexico’s legislature in HB 560, which took effect on July 1, 2015, in removing the incentive for law enforcement to violate property rights and due process. HB 560 ensures that only the property of those found guilty of a crime beyond a reasonable doubt will be subject to forfeit. Moreover, law enforcement agencies will no longer be allowed to keep any of the proceeds of forfeitures.