Legal Commentary

New Institute for Justice Report on Asset Forfeiture

By Ilya Somin

The Institute for Justice, a prominent libertarian public interest law firm, has an important new report detailing the many abuses of property rights in the asset forfeiture system. Here are a few of the key findings:

In most states and under federal law, law enforcement can keep some or all of the proceeds from civil forfeitures. This incentive has led to concern that civil forfeiture encourages policing for profit, as agencies pursue forfeitures to boost their budgets at the expense of other policing priorities. These concerns are exacerbated by legal procedures that make civil forfeiture relatively easy for the government and hard for property owners to fight. For example, once law enforcement seizes property, the government must prove it was involved in criminal activity to forfeit or permanently keep it. But in nearly all states and at the federal level, the legal standard of proof the government must meet for civil forfeiture is lower than the strict standard of ?beyond a reasonable doubt? required for criminal convictions.....

[I]n most places, owners bear the burden of establishing their innocence. In other words, with civil forfeiture, property owners are effectively guilty until proven innocent....

Finally, federal civil forfeiture laws encourage abuse by providing a loophole to law enforcement in states with good laws for property owners: ?equitable sharing.? With equitable sharing, state law enforcement can turn over seized assets to the federal government, or they may seize them jointly with federal officers. The property is then subject to federal civil forfeiture law?not state law. Federal law provides as much as 80 percent of the proceeds to state law enforcement and stacks the deck against property owners. Thus, the equitable sharing loophole provides a way for state and local law enforcement to profit from forfeitures that they may not be able to under state law.

The authors also provide the first comprehensive survey of state asset forfeiture laws, giving each a ?grade? on the A to F scale. They find that most of them provide little if any protection for innocent property owners:

Only three states?Maine, North Dakota and Vermont?receive a combined grade of B or higher. The other 47 states all receive Cs or Ds.

? Most state civil forfeiture laws provide little protection to property owners. Six states receive an F and 29 states receive
a D for their laws alone. Lax federal laws earn the federal government a law grade of D-.

? Eight states receive a B or higher for their laws: Indiana, Maine, Maryland, Missouri, North Carolina, North Dakota, Ohio and Vermont. But extensive use of equitable sharing pulls down the final grades of five of those states: Indiana (C+), Maryland (C+),
Missouri (C+), North Carolina (C+) and Ohio (C-).

? The lowest-graded states overall, combining both poor laws and aggressive use of equitable sharing, are Georgia,
Michigan, Texas, Virginia and West Virginia.

I have previously criticized the asset forfeiture system here, here, and here, pointing out how it often violates constitutional property rights under the Due Process Clause. The Supreme Court had an opportunity to curb some of the more extreme violations of constitutional rights in Alvarez v. Smith, a case it ended up dismissing on procedural grounds.

CONFLICT OF INTEREST WATCH: As I have noted in previous posts involving IJ, I have written several pro bono amicus briefs for them in the past and was an IJ summer clerk during the summer of 1998, after my first year in law school.