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Research & Commentary: Washington, DC’s Pushback Against Civil Asset Forfeiture Reform

July 27, 2017

In this Research & Commentary, Matthew Glans examines civil asset forfeiture laws and recent efforts at the federal level to solidify rules allowing seizure to occur, which could have a negative effect on individual property rights.

In recent years, states have taken many steps toward limiting the ability of law enforcement agencies to seize property from criminal suspects without conclusive evidence a crime was committed or a prosecution, a process known as civil asset forfeiture. Civil asset forfeiture can also be completed without bringing criminal charges against those whose assets have been seized. The standard of proof permitting seizure differs from state to state.

Since 2014, 24 states have comprehensively reformed their forfeiture laws, with 14 states now requiring a criminal conviction before assets are seized. Three states have even banned the practice altogether. Recently, much of this positive progress has been undermined by efforts at the federal level to solidify rules allowing seizure to occur. In July, U.S. Attorney General Jeff Sessions signed an order rolling back previously administered limits on civil asset forfeiture.

According to Governing, Session’s new order would revive the federal program known as “equitable sharing,” which is also referred to as  “adoptive forfeiture,” whereby local law enforcement and federal officials agree to classify the suspected criminal activity as a federal crime and divide the seized assets between them. The federal agencies receive between 10 and 20 percent, and the local police get the remainder.

Some states have laws limiting the ability of local police to conduct civil forfeitures, and others require high standards of proof before property can be taken. Federal forfeiture policies are more permissive than many state policies. Equitable sharing allows local law enforcement agencies to ignore state law and circumvent the will of state legislatures and the people.

Equitable sharing with the federal government is at the heart of most forfeiture in many states. According to Institute for Justice (IJ), in 2014, “more than 3,000 state and local law enforcement agencies received forfeiture proceeds through the Department of Justice’s equitable sharing program, a 17 percent increase from 2004.” From 2000 and 2013, annual payments to state and local law enforcement grew from $199 million to $643 million.

As IJ notes, in a 2011 study published in the Journal of Criminal Justice, criminologists Jefferson Holcomb, Tomislav Kovandzic, and Marian Williams found when states make civil forfeiture more difficult and less financially rewarding through state laws, local and state law enforcement agencies tend to turn to federal equitable sharing. The authors found with “each 25 percent reduction in law enforcement’s cut of state forfeiture proceeds, annual equitable sharing payments increase $6,000.”

Proponents of forfeiture argue it allows law enforcement agencies to use seized assets toward their enforcement efforts, transforming property illicitly gained by criminals into resources that can be used for public benefit. Critics of the process note it gives law enforcement agencies 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 returned assets.

Many federal legislators disagree with the recent efforts to expand civil asset forfeiture. In a May 2017 letter to the U.S. attorney general, a bipartisan group of legislators asked the Department of Justice to revise its civil judicial forfeiture policies and address the controversial Equitable Sharing Program. Congress should reject these new rules and implement reforms to remove incentives for police to seize assets and to require a conviction before property is taken.

The following documents provide additional information about civil asset forfeiture.


Policing for Profit: Federal Equitable Sharing
http://ij.org/report/policing-for-profit/federal-equitable-sharing/
In this report by The Institute for Justice (IJ), IJ examines federal equitable sharing laws and the effect they have on property seizures in the states.  

Civil Asset Forfeiture: 7 Things You Should Know
http://www.heritage.org/research/reports/2014/03/civil-asset-forfeiture-7-things-you-should-know
This Heritage Foundation Factsheet outlines several important things people should know about civil asset forfeiture.

Sidebar: Stricter State Law, More Equitable Sharing
http://ij.org/report/policing-for-profit/federal-equitable-sharing/stricter-state-law-more-equitable-sharing/
The Institute for Justice examines a 2011 study published in the Journal of Criminal Justice by criminologists Jefferson Holcomb, Tomislav Kovandzic, and Marian Williams that found local and state law enforcement agencies in states choosing to make civil forfeiture more difficult and less financially rewarding through state laws have tended to turn to federal equitable sharing to make up for lost funds.

Playing Both ‘Cops and Robbers’ on Asset Forfeiture
https://www.heartland.org/news-opinion/news/playing-both-cops-and-robbers-on-asset-forfeiture?source=policybot
Jesse Hathaway, managing editor of Budget & Tax News, examines in this article a new digital system that allows highway patrolmen to use civil asset forfeiture laws to seize individuals’ assets stored in bank accounts or on prepaid debit cards at the press of a button. “Civil asset forfeiture creates too many perverse economic incentives. However well-intentioned the idea may be, the practice of civil asset forfeiture has been corrupted and now infringes on Americans’ right to be free from harassment by money-hungry agents of the government,” wrote Hathaway.

The Civil Asset Forfeiture Racket
http://reason.com/archives/2014/09/24/the-civil-asset-forfeiture-racket
A. Barton Hinkle of the Reason Foundation examines the growing problems created by civil asset forfeiture and argues for repeal of such laws.

Policing for Profit: The Abuse of Civil Asset Forfeiture
https://www.heartland.org/policy-documents/policing-profit-abuse-civil-asset-forfeiture
Marian Williams, Jefferson Holcomb, Tomislav Kovandzic, and Scott Bullock argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you prove it innocent,” they write.

Civil Asset Forfeiture, Equitable Sharing, and Policing for Profit in the United States
https://www.heartland.org/policy-documents/civil-asset-forfeiture-equitable-sharing-and-policing-profit-united-states
Jefferson E. Holcomb and Marian R. Williams, professors in the Department of Government and Justice Studies at Appalachian State University, and Tomislav V. Kovandzic, a professor in the University of Texas-Dallas School of Economic, Political, and Policy Studies, identify the effects of civil asset forfeiture reform on law enforcement activities. They write, “there is substantial anecdotal evidence that law enforcement [agencies] utilize a variety of tactics to generate the greatest revenue from their forfeiture operations,” a hypothesis their analysis of U.S. Department of Justice statistics confirmed.

Civil Asset Forfeiture Reform Goes Mainstream
https://www.heartland.org/policy-documents/civil-asset-forfeiture-reform-goes-mainstream
Jordan Richardson of The Heritage Foundation discusses how the growing number of civil asset forfeiture abuses have drawn the attention of news media and suggests the increased attention may lead to real reform.

Inequitable Justice: How Federal ‘Equitable Sharing’ Encourages Local Police and Prosecutors to Evade State Civil Forfeiture Law for Financial Gain
https://www.heartland.org/policy-documents/inequitable-justice-how-federal-equitable-sharing-encourages-local-police-and-prose
This report from the Institute for Justice examines the federal law enforcement practice known as equitable sharing, which enables and indeed encourages state and local police and prosecutors to circumvent the civil forfeiture laws of their states for financial gain.

 

Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and PolicyBot, Heartland’s free online research database.

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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