Report Blasts States for Abusing Civil Forfeiture Laws

Tresa Baldas

The National Law Journal

A new report from the Institute for Justice asserts that police and prosecutors nationwide are abusing their forfeiture privileges by seizing property to pad their budgets, in many cases never even charging the property owners with a crime.

The 123-page report, issued on Tuesday by the Arlington, Va.-based libertarian public interest law firm, claims that civil asset forfeiture laws in the vast majority of states give law enforcement a financial incentive to pursue forfeitures for money, rather than for justice. That's because law enforcement agencies are allowed to keep the boats, the cars or the cash, the report says, while property owners bear the burden of fighting to get their goods back and proving their property was not involved in anything illegal.

The report also notes that in some cases, money from forfeitures is not even being used for law enforcement purposes, but to buy sporting event tickets and fund campaign ads.

"Clearly there have been a lot of abuses," said Institute for Justice attorney Scott Bullock, who believes forfeiture laws are "creating perverse incentives" for law enforcement to profit.

"To take property away from people regardless of whether they're convicted of a crime really shocks people, and we think it is a fundamental violation of private property rights and constitutional guarantees of due process," said Bullock, adding, "It happens a lot more often than people think it does."

Prosecutors, meanwhile, dispute the report's conclusion, arguing that civil forfeitures receive plenty of judicial oversight.

"It's not like cops are grabbing something in the middle of the night and not answering for it. In most states, [forfeitures] are completely approved by the court," said James Reams, president-elect of the National District Attorneys Association.

While abuses may occur, "abuses that occur are certainly not endemic," he argued. "The vast majority of [forfeiture] funds are being used exactly the way legislatures intended them to be used. And it's all transparent."

Joshua Marquis, district attorney in Clatsop County, Ore., agreed, saying the Institute for Justice report is "using a very broad brush." Specifically, he disputed claims that law enforcement can outright seize property without offering any explanation to the court.

"I'm faced with this on a regular basis," Marquis said. "In my experience, courts are pretty vigilant in saying there has to be some reasonable nexus. The state just can't take the money. They have to show that there is a strong correlation between criminal activity and the money."

Marquis was also miffed that the report gave his state a "C" for Oregon handles civil forfeiture.

In the report, Policing for Profit: The Abuse of Civil Asset Forfeiture, the Institute for Justice evaluated and graded the civil forfeiture laws in all 50 states and the federal government.

Only three states -- Maine, North Dakota and Vermont -- earned a grade of B or better. Maine earned the highest grade, an A-, largely because all forfeiture revenues go to the state's general fund, not directly into law enforcement coffers.

On the other end of the spectrum, the report gave such states as Texas and Georgia a D- because, the report argued, their laws make forfeiture easy and profitable for law enforcement -- with 90 percent and 100 percent, respectively, of proceeds awarded to the agencies that seized the property.

The report also found that the U.S. Department of Justice's forfeiture fund hit a record high in 2008, topping $1 billion in assets taken. According to the report, upwards of 80 percent of forfeitures at the federal level occur absent a prosecution.

Policing for Profit was co-authored by Bullock, Marian Williams and Jefferson Holcomb of Appalachian State University, and Tomislav Kovandzic of the University of Texas at Dallas.