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The Abuse of Civil Asset Forfeiture

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The Abuse of Civil Asset Forfeiture 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 I 2 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 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 Part I: Policing for Profit I: Policing Part 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 Alabama 46 Alaska 47 Part II Part Arizona 48 Arkansas 49 I 3 California 50 Colorado 51 Connecticut 52 Delaware 53 Florida 54 Georgia 55 Hawaii 56 Idaho 57 Illinois 58 Indiana 59 Iowa 60 Kansas 61 Kentucky 62 Louisiana 63 Maine 64 Part II: Grading the States Part Maryland 65 Massachusetts 66 Michigan 67 Minnesota 69 Mississippi 71 Missouri 72 Montana 73 Nebraska 74 Nevada 75 I 4 New Hampshire 76 New Jersey 77 New Mexico 78 New York 79 North Carolina 80 North Dakota 81 Ohio 82 Oklahoma 83 Oregon 85 Pennsylvania 86 Rhode Island 88 South Carolina 89 South Dakota 90 Tennessee 91 Part II: Grading the States Part Texas 92 Utah 94 Vermont 95 Virginia 96 Washington 98 West Virginia 100 Wisconsin 101 Wyoming 102 I 5 Stories of Civil Forfeiture Abuse Shakedown in Tenaha, Texas 16 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 Stories ofStories Abuse Forfeiture Civil Seizing Elderly Woman’s Home in Philadelphia 38 Appendix A: Methods 105 Appendix B: Detailed Statistical Results 108 Endnotes 113 I 6 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 Executive Summary Executive 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 words, with civil forfeiture, property owners are ef- • In 2008, for the first time in history, the fectively guilty until proven innocent. U.S. Department of Justice’s Assets Forfei- ture Fund (AFF) held more than $1 billion in net assets— Unlike criminal asset forfeiture, with that is, money forfeited from civil forfeiture, a property owner need property owners and now available for federal law not be found guilty of a crime—or even 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 I 7 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 I 8 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.
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