Policing for Profit: The Abuse of Civil Asset Forfeiture 2nd Edition By Dick M. Carpenter II, Ph.D. Lisa Knepper Angela C. Erickson Jennifer McDonald with contributions from Wesley Hottot and Keith Diggs Table of Contents Foreword . 2 Executive Summary . 5 Introduction . 8 Grading State & Federal Civil Forfeiture Laws . 14 Federal Equitable Sharing . 25 Civil Forfeiture & Transparency . 31 Following the Funds . 39 Conclusion . 43 State Profiles . 45 Appendix A: State Law Grading Methods . 150 Appendix B: Civil Forfeiture Law Citations and Other References . 152 Endnotes . 168 About the Authors and Contributors . 178 Foreword Civil forfeiture threatens the constitutional rights of all Americans. Using civil forfeiture, the government can take your home, business, cash, car or other property on the mere suspicion that it is somehow connected to criminal activity—and without ever convicting or even charging you with a crime. Most people unfamiliar with this process would find it hard to believe that such a power exists in a country that is supposed to recognize and hold dear rights to private property and due process of law. Civil forfeiture has all the hallmarks of an inviting ers caught up in civil forfeiture. And the majority opinion target for public-interest litigation and advocacy: a cut- contained this stirring language: “Individual freedom ting-edge legal controversy, sympathetic property owners finds tangible expression in property rights.” who have little or no involvement in criminal activity, But just three years later, the Court chipped away at and simple, outrageous facts that show ordinary Ameri- those rights. In Bennis v. Michigan, another case in which cans facing the loss of their property. IJ participated as amicus, the Court ruled that the gov- The Institute for Justice has made combatting civil ernment could use civil forfeiture to take property from forfeiture a top priority in our work to restore constitu- wholly innocent third-party owners without violating tional protections for private property rights. And with constitutional guarantees of due process or property the publication of this new edition of Policing for Profit: rights protections. The ruling shocked Americans and led The Abuse of Civil Asset Forfeiture, we document in the to increased pressure for better protections for property greatest detail possible the sweep of the forfeiture power. owners in civil forfeiture cases. The seeds of forfeiture abuse were sown in 1984 IJ, along with other groups from across the political when Congress expanded federal civil forfeiture laws and spectrum, responded by advocating for forfeiture reform. created a financial incentive for law enforcement to forfeit These calls, combined with outrage over such terrible de- property. Before then, all forfeited cash and proceeds cisions as Bennis, led Congress to pass the Civil Asset For- from forfeited property had gone to the general fund of feiture Reform Act in 2000. Among other things, CAFRA the U.S. Treasury. But starting in the mid-1980s, forfeiture eliminated the requirement that owners post a bond before revenue instead went to a newly created fund controlled being able to contest a civil forfeiture action in court, and it by federal law enforcement. As a result, all federal for- provided for attorney’s fees for successful defenses against feiture revenue can go back to the very agencies charged forfeiture, though only under limited circumstances. with enforcing the law, giving them a financial stake in But CAFRA did little to counter the Supreme Court’s forfeiture efforts. State and local agencies can also partic- Bennis ruling and, most tellingly, did nothing to change ipate in forfeiture with the feds and receive a cut of the how forfeiture proceeds are distributed or to reduce law revenue through the benign-sounding “equitable sharing” enforcement agencies’ pecuniary interest in civil forfei- program. Around the same time, many states followed ture. Nor did it change any state laws, most of which Congress’ lead and broadened their own state forfeiture also give law enforcement a direct and perverse financial laws while also adding incentives to police for profit. incentive to seize property for forfeiture. Not surprisingly, the use of forfeiture at the federal What happened in the wake of CAFRA’s passage is and state levels exploded once profit incentives kicked a familiar Washington, D.C., tale. Believing the forfei- in. And tales of abuse began to pour in. Throughout the ture problem was fixed, many in the Capitol and the early 1990s, newspapers such as the Pittsburgh Press and media turned their attention elsewhere. Orlando Sentinel and news programs like 20/20 featured But forfeiture continued apace. In the wake of investigative series and exposés highlighting the confisca- 9/11, with the new powers afforded law enforcement, tion of property from owners never convicted of or even forfeiture activity and the revenue it generated skyrock- charged with a crime. eted. And when the recession hit in the late 2000s, and IJ’s involvement with civil forfeiture began only two governments at all levels faced significant budgetary years after our founding when we filed an amicus brief shortfalls, law enforcement agencies had even more of an with the U.S. Supreme Court in United States v. James Dan- incentive to raise revenue through forfeiture. iel Good, critiquing civil forfeiture from a property rights Meanwhile, IJ launched a major property rights initia- perspective. In 1993, the Court issued an important ruling tive whose lessons would bear fruit in the fight against civ- protecting the due process rights of certain property own- il forfeiture. In challenging eminent domain abuse—where 2 local governments use their condemnation power not for also demonstrating its real-world consequences for prop- a traditional public use, like a road or public park, but for erty owners. We also developed model legislation to help private economic development—IJ took a vitally import- lawmakers seeking to bring an end to forfeiture abuse. ant but relatively obscure issue that affected the property Thankfully, lawmakers are once again taking note. In rights of tens of thousands of Americans and brought it the past year alone, New Mexico and Washington, D.C., to national prominence using all the components of our passed very strong reforms, other states passed modest program: litigation, strategic research, communications, reforms, and Congress has taken a renewed interest in grassroots activism and legislative advocacy. federal reform. Opposition from law enforcement, how- One of our most effective tools was Public Power, Pri- ever, is fierce, especially in the face of efforts to stem the vate Gain, a path-breaking report that documented over flow of forfeiture money into agency coffers. In 2015, 13 10,000 instances of governments taking or threatening to bills were introduced to reform civil forfeiture in Texas— take homes, small businesses, churches and other private one of the worst states in the country on this issue—but property in order to give them to other, wealthier private massive pushback from state and local law enforcement owners. The report demonstrated that eminent domain killed every one of them. Such opposition to change will abuse was a nationwide problem that demanded atten- likely intensify in the coming years. tion and action. This second edition of Policing for Profit highlights the We knew a similar report on civil forfeiture could continued need for forfeiture reform. Updated grades for raise the profile of the issue and document the extent of state and federal civil forfeiture laws find that protections the problem. So in 2010, after several years of research, against unjust forfeitures still range from bad to worse, IJ published another trailblazing national report: Policing and too many laws incentivize revenue generation over for Profit: The Abuse of Civil Asset Forfeiture. Publication of the impartial administration of justice. This edition also the report coincided with the launch of IJ’s initiative to shows—with far more extensive data than previously challenge civil forfeiture using all aspects of public-inter- available—that law enforcement’s use of forfeiture con- est litigation and advocacy. tinues to grow. Furthermore, this second edition shines The report demonstrated just how widespread forfei- a spotlight on the appalling lack of transparency in the ture had become—and how deplorable most states’ laws use of forfeiture and its proceeds. Despite the risks to were at protecting property rights. The report also found democratic decision-making in allowing law enforcement that when laws make civil forfeiture easier and more agencies to self-fund, most civil forfeiture laws lack basic profitable, law enforcement engages in more of it. transparency requirements, keeping the public and law- Policing for Profit received significant attention at the makers in the dark about forfeiture activity and spending outset, and media interest in the issue has since grown from forfeiture funds. exponentially. In 2013, The New Yorker published a searing We hope this updated and expanded edition of piece on forfeiture that drew national attention. The Policing for Profit will continue to raise awareness of the following year, a Washington Post investigative series injustices of civil forfeiture and further the drive for exposed abusive cash seizures on highways and drew on reform. We will not rest until civil forfeiture is either IJ’s forfeiture research. Later in 2014, HBO’s John Oliver radically reformed or—even better—abolished. ranted against civil forfeiture in a scathingly funny yet substantive segment, which at the time of this publication —Scott Bullock, Institute for Justice senior attorney had received over six million views on YouTube. In the meantime, IJ pursued cutting-edge litigation aimed at fundamentally changing forfeiture law while This second edition of Policing for Profit highlights the continued need for forfeiture reform. Protections against unjust forfeitures still range from bad to worse, and too many laws incentivize revenue generation over the impartial administration of justice.