Introduction

In 2019, nursing student and single mother Stephanie Wilson had not one, but two cars seized by the Detroit Police Department, losing the first one forever. ¹ That same year, the U.S. Drug Enforcement Administration and the Transportation Security Administration seized retiree Terry Rolin’s life savings of $82,373 from his daughter as she passed through Pittsburgh International Airport on her way to open a joint bank account for him. ² Three years earlier and about 1,000 miles away, a sheriff’s deputy in rural Muskogee, Oklahoma, seized more than $53,000 from Eh Wah, the tour manager for a Burmese Christian musical act, during a routine traffic stop; the funds were concert proceeds and donations intended to support Burmese Christian refugees and Thai orphans. ³ None of these victims were convicted of any crime.

Their stories illustrate a nationwide problem: civil forfeiture. Civil forfeiture allows police to seize property on the mere suspicion that it is involved in criminal activity. Prosecutors can then forfeit, or permanently keep, the property without ever charging its owner with a crime. By contrast, criminal forfeiture requires prosecutors to prove beyond a reasonable doubt that an owner is guilty of a crime and then, in the same proceeding, prove the property is connected to the crime.

As this report demonstrates, the cases of Stephanie Wilson, Terry Rolin and Eh Wah are not isolated incidents: Local, state and federal agencies use civil forfeiture to collectively forfeit billions of dollars each year.

Civil forfeiture laws generally make it easy for governments to forfeit property—and hard for people to fight. As this report documents, these laws typically set low standards of proof, which is the evidentiary burden prosecutors must meet to connect property to a crime. And they provide weak protections for innocent owners whose property is caught up in forfeiture but who have done nothing wrong.

Most forfeiture laws also make seizing and forfeiting people’s property lucrative for law enforcement. In most states and under federal law, some or all of the proceeds from forfeiture go to law enforcement coffers. Thus, Wayne County law enforcement, federal law enforcement and Muskogee County law enforcement stood to benefit financially from forfeiting Stephanie’s cars and Terry’s and Eh Wah’s cash. Giving law enforcement this financial stake in forfeiture can distort priorities, encouraging agencies to pursue financial gain over public safety or justice, cash over crime or contraband. ⁴ Together, civil forfeiture’s ease and financial rewards drive its use nationwide.

Despite the billions generated, our data indicate the typical individual cash forfeiture is relatively small—only a few hundred or a few thousand dollars. This suggests that, aside from a few high-profile cases, forfeiture often does not target drug kingpins or big-time financial fraudsters. More than that, the data show why it often makes little economic sense for property owners to fight. The cost of hiring an attorney—a virtual necessity in navigating complex civil forfeiture processes, where there is generally no right to counsel—often outweighs the value of seized property. This is why Stephanie abandoned her first car. ⁵ Still, many small forfeitures such as hers can make a great deal of economic sense for law enforcement. In just two years, the Wayne County forfeiture program that claimed Stephanie’s car generated $1.2 million in revenue from 2,600 cars. ⁶

In these and other ways, civil forfeiture threatens not only property rights but also due process rights. Indeed, in 2017, U.S. Supreme Court Justice Clarence Thomas questioned whether modern civil forfeiture laws “can be squared with the Due Process Clause and our Nation’s history.” ⁷ Civil forfeiture is not only a civil process, it is an “in rem” proceeding, meaning it is a lawsuit against the property, not the person. (Hence, odd case names like Richardson v. $20,771.00 U.S. Currency and In re: U.S. Currency $31,780; 2012 Volkswagen Jetta, VIN 3VW3L7AJ0CM366141. ⁸ ) As a result, Justice Thomas noted, owners can lose property even when innocent, and procedural protections common to criminal proceedings usually do not apply.

Justice Thomas also observed that today’s civil forfeiture laws have expanded far beyond their once-narrow historical purposes—specifically, taking property in piracy and customs cases when the owner was overseas and outside U.S. jurisdiction. ⁹ Now forfeiture attaches to hundreds of crimes, many if not most of which are purely domestic. The U.S. Department of Justice’s forfeiture database, for example, contains over 377 unique statutes authorizing forfeiture. ¹⁰

Forfeiture also poses a separation of powers concern. In allowing agencies to self-fund outside the normal appropriations process and with little oversight, it undermines legislatures’ power of the purse and invites questionable expenditures, such as $70,000 for a muscle car in Georgia, ¹¹ $250,000 for lavish travel and meals in New York, ¹² and $300,000 for an armored vehicle in Iowa. ¹³

Recent rulings from the U.S. and Indiana Supreme Courts highlight another constitutional problem with forfeiture: If disproportionate to the alleged crime, a forfeiture can violate the Eighth Amendment’s prohibition on excessive fines. ¹⁴ And forfeiting an innocent person’s property is always disproportionate.

Beyond its constitutional problems, forfeiture poses policy concerns. For example, forfeiture’s financial incentive may promote negative interactions between police and the public, a particular risk to communities of color. ¹⁵ Indeed, there is evidence forfeiture disproportionately affects Black men. ¹⁶ And recent research finds increases in arrest rates for Blacks and Hispanics during times of fiscal stress and when law enforcement can benefit financially from forfeiture under state law. ¹⁷ Not only may forfeiture target communities least equipped to fight back, it may further burden lower-income and other disadvantaged communities by depriving them of needed resources. ¹⁸

This third edition of Policing for Profit presents the largest collection of state and federal forfeiture data yet assembled and provides newly updated grades of state and federal civil forfeiture laws. It also draws on a growing body of evidence regarding whether forfeiture works to fight crime. ¹⁹ The conclusion: Civil forfeiture overpromises and underdelivers.

Continue Reading: Executive Summary

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