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Policing for Profit: the Abuse of Civil Asset Forfeiture 1091 5536.Pdf; State V The Abuse of Civil Asset Forfeiture 3rd Edition By Lisa Knepper, Jennifer McDonald, Kathy Sanchez and Elyse Smith Pohl 2020 December 2020 The Abuse of Civil Asset Forfeiture 3rd Edition By Lisa Knepper, Jennifer McDonald, Kathy Sanchez and Elyse Smith Pohl December 2020 2 Table of Contents Executive Summary ..........................................................................................5 Introduction .......................................................................................................9 Gathering Nationwide Data to Study Forfeiture ...........................................11 Forfeiture Is Lucrative for Governments Nationwide .................................15 Forfeiture Is Hard for Owners, Easy for the Government .......................... 23 Civil Forfeiture Laws Fail to Protect Property Owners................................31 Equitable Sharing Creates a Giant Loophole................................................ 46 Evidence Suggests Forfeiture Doesn’t Work .................................................51 Barriers to Forfeiture Reform ........................................................................ 56 Conclusion and Recommendations ............................................................... 58 State Profiles .................................................................................................... 59 Appendix A: State Law Grading Methods ................................................... 166 Appendix B: Civil Forfeiture Law Citations ..................................................17 0 Appendix C: New Mexico Crime Analysis Methods ................................... 187 Endnotes .......................................................................................................... 192 About the Authors .......................................................................................... 207 About Policing for Profit ................................................................................. 208 Sidebars Despite Progress, Forfeiture Transparency and Accountability Remain Limited ......................................................................12 Curbing “Excessive” Forfeitures .................................................................... 22 Prosecutors Use Dirty Tricks to Make Sure Forfeiture Sticks .................. 29 New Research: Eliminating Civil Forfeiture Does Not Increase Crime ..... 32 Forfeiture Creates Pressure to Wheel and Deal or Walk Away .................. 38 South Carolina High Court Weighs Forfeiture and the Constitution......... 55 3 Customs and Border Protection seized over $40,000 from Anthonia Nwaorie as she was boarding a flight to Nigeria. Her “crime”? Not realizing she needed to file a form. 4 Executive Summary Most states and the federal government have laws must meet to forfeit property, (2) protections provided allowing police and prosecutors to seize and permanently to innocent owners whose property is seized, and (3) the keep Americans’ cash, cars, homes and other property share of forfeiture proceeds that flows to law enforcement suspected of being involved in a crime—without regard coffers, providing a financial incentive to seize and to the owners’ guilt or innocence. This is civil forfeiture, forfeit. These elements reflect both how easy forfeiture is and it is rampant nationwide, with local, state and federal for the government—and conversely, how hard it is for agencies using it to collectively forfeit billions of dollars property owners to fight—and how profitable forfeiture each year. Many of these billions go directly to law is for law enforcement. enforcement, including the same police and prosecutors who seize and forfeit property. • Thirty-five states earn overall grades of D+ or worse This third edition of Policing for Profit presents the for extending property owners meager protections largest collection of state and federal forfeiture data yet and giving law enforcement large financial stakes in assembled and provides updated grades of state and forfeiture proceeds. And federal civil forfeiture laws federal civil forfeiture laws. Key findings include: are among the nation’s worst, earning a D-. • New Mexico earns the nation’s only A for abolishing Forfeiture Is Big and It Happens Nationwide civil forfeiture and eliminating any financial incentive by directing forfeiture proceeds to the Many jurisdictions fail to provide a full accounting state’s general fund. of forfeiture activity, so any estimate of forfeiture’s scope will undercount. Still, by any measure, forfeiture activity • Since the previous edition of Policing for Profit, 32 is extensive nationwide, sending billions of dollars to states and the federal government have adopted government coffers. some form of forfeiture reform. Unfortunately, few of these reforms have tackled the central problems with • In 2018 alone, 42 states, the District of Columbia, civil forfeiture laws graded by this report. and the U.S. departments of Justice and the Treasury forfeited over $3 billion. This is the year for which we have data from the largest number of states. New Research Shows Eliminating Civil Forfeiture Does Not Increase Crime • Looking at a longer time period, 2002 to 2018, 20 states and the federal government forfeited over $63 This edition of Policing for Profit presents new billion. The remaining states did not provide data for research indicating that states can adopt stronger those 17 years. forfeiture reforms without compromising public safety. The study examines New Mexico’s best-in-the- • Since 2000, states and the federal government forfeited nation forfeiture laws, adopted in 2015. To see whether a combined total of at least $68.8 billion. And because abolishing civil forfeiture negatively impacted public not all states provided full data, this figure drastically safety, the study compares New Mexico’s crime rates underestimates forfeiture’s true scope. to those of neighboring Colorado and Texas before and after reform. • Among the states with 2018 data, Florida, Texas, Illinois, California and New York took in the most • Contrary to claims that abolishing civil forfeiture forfeiture revenue. But once state populations are would increase crime rates, multiple analyses across factored in, Florida, Illinois, Tennessee, Rhode Island five different measures of crime find no evidence of and Nebraska used forfeiture most extensively. any negative effect from New Mexico’s reform. • The state’s overall crime rate did not rise following State and Federal Laws Make Forfeiture Easy the reform, nor did arrest rates drop, strongly and Profitable for Law Enforcement suggesting civil forfeiture is not an essential crime- fighting tool and law enforcement agencies can fulfill This report grades state and federal laws on three their mission without it. core elements: (1) the standard of proof the government 5 Federal Equitable Sharing Creates a Giant Forfeiture Isn’t Targeting Kingpins and Loophole Ordinary People Can’t Fight Back Even in states with better civil forfeiture laws, Proponents argue forfeiture fights crime by hitting innocent people can still lose property to forfeiture. That criminals where it hurts—in their wallets. Our data cast is because the federal government offers a giant loophole: doubt on this claim, suggesting forfeiture instead often federal equitable sharing. Equitable sharing allows state targets ordinary people. The data also show people rarely and local law enforcement agencies to partner with federal fight back. agencies to seize and forfeit property under the federal government’s permissive laws and receive up to 80% of • The median currency forfeiture is small, averaging just the proceeds, regardless of state law. By handing over $1,276 across 21 states with available data. In some seized property to the federal government, state and local states, the median forfeiture is only a few hundred law enforcement agencies can harness the litigation power dollars. These low values suggest forfeiture often is of the federal government—and circumvent state laws not targeting kingpins or major financial fraudsters. that provide better protection to property owners or direct forfeiture proceeds to a neutral account. • More than that, it may not make economic sense for people to contest such low-dollar forfeitures. • Each year, the federal government pays out hundreds Conservatively, hiring an attorney to fight a relatively of millions of dollars to state and local agencies simple state forfeiture case costs at least $3,000—more participating in the equitable sharing program—$333.8 than double the national median currency forfeiture. million in 2019 alone and more than $8.8 billion in total from 2000 to 2019. • This may help explain why available data suggest forfeitures are frequently uncontested, resulting in • In a nationwide ranking that factors in drug nearly automatic wins for the government. In the four arrest rates, Rhode Island, New York, California, states that track this information, people seek return of Massachusetts and Texas participate most heavily in their property in 22% of cases or fewer. equitable sharing. • Several states, including New Mexico, have shrunk Evidence Suggests Forfeiture Doesn’t Work the equitable sharing loophole in various ways. But in most states, it remains wide open. Our data also call into question claims that forfeiture fights crime and the proceeds can be used to compensate victims or invest in anti-drug and other Easier Forfeiture Procedures Predominate community programs. With
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