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.
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.
An ineffective tool?
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 this week, 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. 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.
Undermining state law
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 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.
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.
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.
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.
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.
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.
Radley Balko is a columnist with The Washington Post.