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Policy Tip Sheet: States Should Limit Civil Asset Forfeiture

February 6, 2018

In this Policy Tip Sheet, Matthew Glans examines civil asset forfeiture and outlines several ways states can improve their forfeiture laws.

Problem

Civil asset forfeiture, also known as civil judicial forfeiture, is a controversial legal process in which law enforcement agencies take personal assets from individuals or groups suspected of a crime or illegal activity. This can be done without bringing criminal charges against those whose assets are seized. The standards of proof allowing seizure differ from state to state.

Critics of the process note it gives government officials economic incentives to seize property, corrupting law enforcement agencies and penalizing innocent property owners. Many states impose no penalties on law enforcement for wrongful seizures, and when property is deemed to have been taken illegally, taxpayers usually have to pay for the assets to be returned.

Property owners are typically given very few opportunities to challenge seizures, and when given the chance to challenge a seizure, the process is expensive for those whose property has been taken.

Many local police agencies work with federal authorities to sidestep restrictions through so-called “equitable sharing agreements,” in which both parties agree to classify the suspected criminal activity as a federal crime, allowing them to divide the seized assets between federal and local officials. The federal agencies often receive 10–20 percent of the value of the seized assets, and the local police get the remainder. This troubling arrangement allows local law enforcement agencies to ignore state law and circumvent the will of state legislatures and citizens.

Policy Solution

In several states, the government is required to demonstrate seized property is directly related to criminal activity using a standard equal to the preponderance of the evidence standard that applies in in civil lawsuits. This lower standard gives law enforcement agencies a wider scope for seizure; requiring a conviction would ensure only those proven to commit crimes can have their property seized. Since 2014, 24 states have comprehensively reformed their forfeiture laws. Fourteen states now require a criminal conviction before assets can be seized.

Scott Bullock, senior attorney at the Institute for Justice, offers five recommendations for states not willing to halt all forfeitures: (1) place seized revenues in neutral funds, (2) increase the standard of proof for seizure to require “clear and convincing evidence” of a crime, (3) move the burden of proof to the government, (4) make the tracking of seized assets more transparent, and (5) eliminate equitable sharing arrangements.

Policy Message

  • Lax civil asset forfeiture laws provide an incentive to seize for law enforcement agencies.
     
  • States should strengthen the standard for seizure in court from the preponderance of the evidence to either clear and convincing evidence or a conviction.
     
  • Transparency is key. States should require law enforcement agencies to track how and why they seize property, along with the value of what is seized.
     
  • Funds generated from seizures should be placed in neutral funds, not simply given to law enforcement agencies.
     
  • States should avoid equitable sharing agreements; they allow state law enforcement agencies to bypass state laws limiting seizures.
Author
Matthew Glans joined the staff of The Heartland Institute in November 2007 as legislative specialist for insurance and finance. In 2012, Glans was named senior policy analyst.
mglans@heartland.org @HeartlandGR