Trials and Error

How to End Civil Forfeiture

Nebraska and New Mexico show it’s possible to ban the abhorrent practice of taking money and property from citizens without due process.

Donald Trump sits with U.S. Senator Jeff Sessions
Attorney General Jess Sessions is in favor of civil asset forfeiture. Above, then-Sen. Jeff Sessions with President Trump at Trump Tower in New York on Oct. 7.

Mike Segar/Reuters

For years, law enforcement agencies around the country have been fighting attempts to reform civil asset forfeiture—the practice of taking money and property from people who haven’t been charged with or convicted of a crime. Now those agencies have a friend in the nation’s capital. Last week, Attorney General Jeff Sessions strengthened law enforcement’s ability to seize people’s assets nationwide. Sessions says he wants to clamp down on drug traffickers and take property away from criminals. But the cozy relationship between law enforcement and the administration indicates the new scheme is likely to fill the pockets of cops and prosecutors while unnecessarily criminalizing poor people of color.

Sessions’ announcement came at a time when Democrats and Republicans alike are pushing back on civil forfeiture. An attempt to reform the practice even emerged this year in Texas, which has one of the worst civil forfeiture records in the country. Texas law enforcement agencies raked in an average of $41.6 million in forfeiture proceeds annually between 2001 and 2013. Earlier this year, lawmakers in this state filed a slate of bills that offered hope for reform. The bills would have required a conviction before property was seized, restricted what could be taken, and forced the state to prove seized property was related to a crime. The main opposition to the bills came from district and county attorneys, who testified before a legislative committee and wrote opinion pieces defending forfeiture as a public safety imperative. In the end, most of the bills didn’t make it out of subcommittee, and the ones that did weren’t voted on.

In Texas and the vast majority of U.S. states, forfeiture is driven by profit motives. Law enforcement agencies echo Sessions in saying the practice helps crack down on drug cartels, allowing cops to seize contraband and property that could serve as evidence in criminal cases. Lee McGrath, the senior legislative counsel at the Institute for Justice, a libertarian public-interest law firm that tracks forfeiture trends, says that this is not how forfeiture works in practice. Police, sheriffs, and local prosecutors seize small sums of money and other valuables—including electronics, cars, and houses—then sue the owners of those items so they can take ownership themselves. Most people whose property is taken don’t have the right to an attorney to fight for their belongings, since they haven’t been charged with a criminal offense. A 2014 Washington Post investigation that analyzed 400 federal court cases involving civil forfeiture uncovered that the majority of people who’d been victimized by the practice were nonwhite. Additional investigations have yielded similar findings in Oklahoma, California, and Pennsylvania.

State laws stipulate what can be seized and forfeited. But local and state law enforcement agencies have a second avenue for collecting money and assets if state law doesn’t permit them to do so: the federal equitable sharing program. Under that program, local agencies seize money and property and hand it over to the federal government, which then returns a percentage of the profit. The program distributed $1.7 billion to local and state police departments between 2001 and 2014.

Outside of Texas, efforts to reform civil asset forfeiture have progressed in multiple jurisdictions. The most comprehensive reforms have emerged in those locales where the anti-forfeiture movement had strong bipartisan support and law enforcement didn’t put up a strong fight. In 2014, Washington, D.C., became the first city in the U.S. to pass a major reform bill that slashed financial incentives for law enforcement to take property. Before the bill passed, police had made 12,000 seizures, taking 1,000 cars and $5.5 million in cash, between 2009 and 2014. Profits from property taken under local law went into a general fund for the city, from which police collected very little money—roughly $30,000 a year. As a consequence, police turned to the equitable sharing program, using federal law to seize cash and belongings, transferring the assets to the federal government, and receiving a big cut in return. Police racked up approximately $670,000 annually from the program, according to a 2014 Washington Post analysis

The reform effort in D.C. was set off by litigation challenging the city’s bond requirements, says Laura Hankins, general counsel of the Public Defender Service for the District of Columbia, which sued the District in 2013 for seizing cars without due process. City law had required people to spend hundreds—sometimes thousands—of dollars in bond money to fight for their property. The public defender’s office used momentum from that legal battle to draft legislation that would both eliminate the bond requirement and curb civil forfeiture. The police chief at the time, Cathy Lanier, reportedly agreed with the bill’s objective of making the system more fair. Despite opposition from the office of the D.C. attorney general, the bill passed, ending the equitable sharing partnership with the feds. The caveat was that the new law wouldn’t go into effect until 2018. Pushing back implementation gave the police department time to find other ways to supplement its budget.

In 2015, New Mexico became the first state to ban civil forfeiture. Law enforcement was previously entitled to 100 percent of forfeiture profits under state law, and agencies in the state also received an average of $2.4 million per year from the federal equitable sharing program. That changed when a coalition of civil rights and advocacy organizations, including the ACLU of New Mexico, the Rio Grande Foundation, and Drug Policy Alliance teamed up with Brad Cates, who oversaw federal asset forfeiture under President Ronald Reagan, to convince legislators that the practice was an abuse of power. Their argument was bolstered by a leaked recording of a prosecutor encouraging police to seize expensive cars and homes—a clear sign of policing for profit, says Emily Kaltenbach, director of the Drug Policy Alliance’s New Mexico branch.

In New Mexico, money and property can now only be seized in criminal cases, not in civil ones. And items can only be taken after a criminal conviction, if they’re associated with the crime and if law enforcement successfully fights for them during a separate trial in criminal court. Proceeds must go a general state fund, not directly to law enforcement. Moreover, the law banned the practice of turning over assets to the feds, unless they are worth at least $50,000. New Mexico’s sweeping reform was achieved in large part because the law enforcement community was caught off guard by the speed at which the legislation received unanimous support, Kaltenbach says. As a result, there was no organized opposition.

Nebraska passed a similar law abolishing civil forfeiture last year, after the state’s ACLU chapter released a damning report on the practice in 2015. Under the old law, law enforcement agencies collected $3 million between 2011 and the report’s release. Agencies also received $16 million from the equitable sharing program between 2010 and 2014. The ACLU leveraged public outrage over the report in conversations with legislators, says Spike Eickholt, a lobbyist for the organization. Cops, sheriffs, and state patrolmen also put forth a tone-deaf opposition that focused on the law’s effect on agencies’ bottom lines. “It had gotten to a point … that no one could defend civil forfeiture on its merits,” Eickholt says. Despite their concerted pushback, members of law enforcement were unable to convince legislators that civil forfeiture was necessary to stop crime.   

Some states that haven’t ended civil forfeiture altogether have implemented procedural reforms. In California—where more than 20 county sheriffs and police departments collected millions over a five-year period—and seven other states, property can be seized but not forfeited until after a criminal conviction. Just this month, Connecticut’s governor signed a law that bans seizure unless an arrest is made and requires a criminal conviction before property can be forfeited. What differentiates these state laws from the ones implemented in New Mexico and Nebraska is that agencies can still pursue forfeiture in civil court once there’s been a conviction. In cases where people are acquitted, they get their money and valuables back. Other states, including Pennsylvania and Florida, have shifted the burden of proof to law enforcement to demonstrate that an asset should be seized and forfeited or have raised the standard of proof for showing that an asset was related to a crime. Florida now prohibits seizing someone’s property unless he or she has been arrested and charged.

The inability to abolish civil forfeiture in these states speaks to the potency of law enforcement’s opposition, according to McGrath of the Institute for Justice. The states that have tried and failed to pass reform, including Texas, Alabama, Idaho, and Oklahoma, are the ones in which district attorneys and police have been most reluctant to compromise. With the United States attorney general on their side, they may not have to.