When you tell people who know little of our criminal justice system about civil asset forfeiture, they often don't believe you. And it isn't difficult to see why. It's a practice so contrary to a basic sense of justice and fairness that you want to believe someone is pulling your leg, or at least exaggerating.
No exaggeration is necessary. Civil asset forfeiture is based on the premise that a piece of property can be guilty of a crime. Under the theory, if the police suspect that cash, a car, a house or even a business was obtained through proceeds of a crime (usually a drug crime), or was in any way connected to the commission of a crime, they can seize said property. The burden then falls on the property's owner to prove that they either acquired it legally, weren't using it in the commission of a crime, or that someone else used it illegally without the owner's knowledge (though not all states offer the "innocent owner" defense).
In many instances, not only is the owner required to prove a negative, but the process also can be prohibitively expensive. In most cases, the owner is never charged with a crime, much less convicted, yet the police agency gets to keep some or all of any cash seized, and some or all of whatever a house, car or other item earns at auction. In some states, the prosecutor's office gets a portion, too. In others, civil forfeiture cases are contracted to private law firms, which get to keep a cut of whatever they win in court.
Proponents of civil forfeiture offer a few arguments in support of the policy. First, they argue that forfeiture is primarily used against big-time criminals and drug dealers - that it robs crime lords of ill-gotten gains. But the data suggests otherwise. A review of 315 seizures in Mississippi, for example, found just six were for property worth more than $60,000, and most of those involved vape shops operating openly that had been accused of selling synthetic drugs. The average forfeiture amount in Washington is just $141. A review of more than 8,200 seizures in Philadelphia released earlier this year found the average forfeiture amount was $550, and the median amount just $178. (Since forfeiture averages can be skewed by a very small percentage of cases in which police really did nab a high-value drug dealer, the median seizure is often more representative of a typical forfeiture target.) Another review of more than 23,000 seizures in Cook County, Illinois, put the average amount of $4,553 and the median at $1,049. The same review found that the overwhelming number of civil forfeiture cases were in the city's poor and black neighborhoods.
Forfeiture proponents also argue that civil forfeiture puts drug runners out of business, meaning there's less product on the streets and less opportunity for illegal drug use and addiction, and that when the proceeds from forfeiture go back to police agencies, the funds help police solve other crimes, such as rapes, robberies and murders.
But a new study from the Institute for Justice (IJ), a libertarian law firm and advocacy group, casts some doubt on these claims, too. The study, which will be released Wednesday, looked at a federal forfeiture policy called equitable sharing. Before we get to the study, that policy requires some explanation.
In response to criticism that civil forfeiture creates perverse incentives for law enforcement and/or that it's simply unjust, some states have passed laws putting restrictions on the policy. Some of these laws require that any proceeds from civil forfeiture cases go to a general revenue fund, or to some unrelated area such as a school fund. Others have raised the burden of proof in forfeiture cases and given more protections to property owners. More recently, several states have effectively banned civil forfeiture altogether, allowing forfeitures only in cases where prosecutors can obtain a criminal conviction.
The federal government has responded to these laws with the policy called equitable sharing. Under the policy, any police investigation involving federal resources is governed by federal law, not the more restrictive state laws. In some instances, such as joint operations and federal-local task forces, federal involvement in the case is significant. But within the equitable sharing cases, there's a subclass of cases called "adoptions." In these cases, the local police agency does almost all of the work. After the seizure, they'll simply call up the field office of the Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, or other federal agency, and ask the feds to "adopt" the case. The operation is now governed by federal law. The federal agency takes possession of the seized property, then returns up to 80 percent of it to the local police department.
Adoption is clearly an attempt to subvert the will of state legislatures. A 2018 study found that police agencies in states with significant restraints on civil forfeiture were twice as likely to use adoption as states without such restraints. The Obama administration put a halt to the adoption policy in 2015, but then-Attorney General Jeff Sessions reinstated it in 2017.
The IJ study, conducted by Seattle University economist Brian Kelly, uses data from the Justice Department's equitable sharing program to look at whether an increase in such forfeitures had any effect on drug use and the rate at which police solve serious crimes. With clearance rates, he found only a statistically insignificant benefit: A $1,000 increase in equitable sharing proceeds per officer corresponded to cops solving 2.4 more crimes per 1,000 cases. And as Kelly notes, even if it were statistically significant, the benefit is minuscule: "If an agency's clearance rate were, say, 270 per 1,000 offenses, receiving $1,000 more in equitable sharing funds per officer would mean increasing the clearance rate to just 272.4."
When it comes to illegal drug use, Kelly found no effect at all. "The four . . . drug use measures I used were (1) use of any illicit drug in the previous year, (2) marijuana use in the previous year, (3) nonmedical use of prescription pain relievers in the previous year and (4) cocaine use in the previous year," he writes. "For none of these illicit drug use measures did I find increases in equitable sharing proceeds led to subsequent reductions in use."
Kelly did find one significant correlation when it comes to civil asset forfeiture. He found that "a 1 percentage point increase in unemployment was associated with an 8.5 percentage point increase in the value of forfeited assets and a 9.5 percentage point increase in the number of assets seized." In other words, as unemployment goes up in a community - as more people find hard times and are down on their luck - local police are more likely to target those communities for forfeiture.
"That one was surprising to me," Kelly says in a phone interview. "IJ had asked me to look at that, and I didn't expect to find a correlation. But it was both robust and it was significant."
Kelly looked at unemployment as a proxy for economic distress, on the theory that when budgets are tight, police look to forfeiture as an alternate source of funding. "I'd preferred to have used policy agency budgets themselves," he says. "But that information is nearly impossible to obtain."
In fact, although civil forfeiture as it exists today has been in wide practice since about the early 1980s, Kelly says that because police agencies are notoriously opaque, measuring the effectiveness and possible unintended consequences of the policy has been almost impossible. In fact, the reason he used cases from the equitable sharing program is that most local police agencies don't keep detailed records on forfeiture cases. And even though the Justice Department does keep detailed records of forfeiture cases taken in under the program, Kelly says the data is extremely difficult to disentangle. He adds that "while the staff there work hard - and seem to be overworked - they have an uncanny ability to never quite interpret my FOIA requests correctly."
In fact, for such a massive program - the Justice Department has taken in more than $27 billion in forfeiture funds since 2001 - the federal government has made little effort to discern whom these policies are affecting, what collateral effects they may have and, most importantly, whether they actually work.
"We've been able to discern a lot about the property seized in equitable sharing cases," Kelly says. "But the federal data tell us nothing about the property's owner."
About the only thing we do know is that the typical person targeted in an equitable sharing forfeiture case isn't the criminal kingpin so often conjured to justify the policy. "If you were to make a graph of the distribution of the amounts in these cases, it would weigh heavily to the left," Kelly says, meaning that most equitable sharing cases involve smaller amounts of money and less valuable property. "If you take out the top 1 percent of forfeitures, the average amount seized falls below $2,000."
Numerous media outlets, including The Washington Post, have documented countless cases in which police have targeted innocent property owners or, at the very least, people for whom there was little to no evidence of any criminal activity. Defenders of civil forfeiture often point to the low percentage of property owners who fight seizures in court, suggesting that the failure to fight is indicative of guilt. But the cost of hiring an attorney to recover $1,500 can quickly exceed $1,500. Few targets of forfeiture have the luxury of spending more on the legal fight to return their property than the property was actually worth - just to prove a point. If the item seized was a car, a low-income person may have no cash at all to pay an attorney, which means that even if successful in court, the cost of victory could well require them to sell the car they'd just won back. It isn't difficult to see why even an innocent person would conclude that it's just not worth the fight.
Under federal law, the Justice Department can't get involved in a local forfeiture case unless the value of the seized property exceeds a minimum value. (The minimum varies depending on the type of case.) But the DOJ can also issue waivers to that policy and, according to Kelly, about half of equitable sharing cases require such a waiver. In other words, the people who wrote the DOJ equitable sharing guidelines understood that it's bad policy to let local police agencies call in the feds to get around state restrictions in order to harass people for small amounts of cash. Yet at least half the time, that's exactly what they're doing.
Civil asset forfeiture is manifestly unfair, loaded with perverse incentives, based on a legal fallacy and opposed by an overwhelming majority of the public (once they know what it actually is). It's also typically carried out with little transparency or oversight, and it's a policy that, when we do have data, has been shown to be falling far short of the justifications for its existence.
Those failures probably explain why police agencies are so opaque about it in the first place.
| Courtesy Radley Balko
Radley Balko blogs and reports on criminal justice, the drug war and civil liberties for The Washington Post. Previously, he was an investigative reporter for the Huffington Post and a writer and editor for Reason magazine. His most recent book is “The Cadaver King and the Country Dentist: A True Story of Injustice in the American South.”