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In 2015, New Mexico lawmakers unanimously passed a bill to all but end civil asset forfeiture, the process that lets police keep cash or property they seize, even if they never charge the owner with a crime, so long as they suspect that it’s linked to criminal activity. High-profile lawsuits and press attention had prompted some states to reexamine their forfeiture laws.
Law enforcement officials howled in outrage. In New Mexico, sheriffs and prosecutors implored the governor to veto the legislation. Eliminating civil forfeiture, they argued, would hand the bad guys a win and put public safety at risk. “You’ll get less law enforcement,” predicted the chair of the state sheriffs’ association, Ken Christesen, who noted that police departments use forfeitures to help fund their budgets. (The bill still allowed forfeiture, but only through criminal court, which imposes a much more stringent burden of proof on prosecutors than its civil counterpart.)
Criminal organizations would grow richer and more powerful, Christesen warned, if they got to hang on to the cash, cars and other property police could no longer seize from them. “The end result of this,” he said, “is the cartels are going to ramp up their money laundering and cash exchanges in the state of New Mexico tenfold.” The governor, Susana Martinez, wasn’t persuaded, and she signed the bill into law.
Now, five years after New Mexico effectively banned civil forfeiture, those fears remain unrealized, according to a new study set to be published on Tuesday by the Institute for Justice, a public interest law firm that has been advocating reforms to forfeiture laws. The predicted rise in crime and drop in arrests has not materialized, according to the study, which is based on analyses of FBI data. Arrest and offense rates in New Mexico, the study found, remained essentially flat before and after the 2015 law went into effect. That’s based on an examination of crime overall, as well as a specific set of offenses: drug possession, drug sales, and driving under the influence. Arrest and offense rates were also consistent with trends in two neighboring states, Colorado and Texas.
Nor, the study shows, are civil forfeitures key to cutting off the flow of millions of dollars to major fraudsters and criminal enterprises, as defenders of the practice often claim. Bernie Madoff, the notorious Ponzi schemer, was the principal example of the virtues of civil asset forfeiture in a 2017 op-ed in The Wall Street Journal by Rod Rosenstein, then the second most senior official at the Justice Department. He hailed the fact that $3.9 billion had been recovered and was being returned to Madoff’s victims. Rosenstein also cited a case in which $48 million was seized from drug couriers and another in which “millions” were recovered from a $110 million Medicare fraud.
The new Institute for Justice study tells a different story. The median forfeiture averaged $1,276 across the 21 states where usable data was obtainable. In most of those states, half of cash seizures fell below $1,000. In Michigan, for example, half of all civil forfeitures of currency were worth less than $423, and in Pennsylvania, that median value was $369. (The analysis was limited to currency seizures because valuations of other kinds of property, such as cars, depend on subjective appraisals, which may not be reliable.)
“That’s not drug dealer money,” said Jenny McDonald, a senior research analyst at the Institute for Justice who authored the study. She said she and her colleagues expected the figures to be low, but “just how low they were shocked even us.”
Civil forfeiture is often used to target ordinary people stopped for minor infractions, like traffic violations, where police purport to have a basis to suspect the money is connected to some kind of criminal act. Police officers have seized people’s cars after finding a small amount of marijuana or when a drug-sniffing dog indicated that drugs were once present in a car.
Police sometimes target family homes, too. In 2013, ProPublica reported on how prosecutors in Philadelphia sought to seize the houses of often lower-income residents simply because a child or other relative had sold small amounts of drugs while living there. Some of those families spent years in court fighting to save their homes. (The city has since reformed its civil forfeiture system after Institute for Justice lawyers filed a class action lawsuit on behalf of city residents.)
One incentive for police to target lower-dollar seizures is that they’re not worth challenging in court. The cost of hiring a lawyer — and sometimes even the court filing fee — may well exceed the amount of money at issue. The Institute for Justice found that, in the four states that track such data, one-fifth or fewer of the people involved sought the return of their property. In Colorado, only 1% of forfeitures were challenged.
The new study — the third, and most comprehensive, edition of a report titled “Policing for Profit” — is built on data acquired through hundreds of public records requests to state and federal agencies, many of which maintain only limited statistics on forfeitures. That lack of transparency can obscure abusive practices not only from the public but even from state and local officials.
As for Rosenstein’s claim about how forfeiture funds are disbursed, the Institute for Justice found that the U.S. Justice Department spends less than a third of what it brings in from civil forfeiture on compensating victims and other third parties. Some states mandate spending on victim compensation. But in at least six of the 15 states that disclose data on how forfeiture funds are spent — including Florida, Illinois, Oregon and Utah — none of the money obtained by civil asset forfeiture went toward paying back victims of crime for what they lost. The other nine states either use negligible amounts to compensate victims or do not specify whether any money goes to victims.
Instead, law enforcement directed the money mostly toward salaries, equipment and other operational expenses. For some law enforcement agencies, forfeiture funds have accounted for as much as 20% of their budgets, and are sometimes used for seemingly nonessential purchases. A police department in Georgia, for example, once spent $227,000 on an armored personnel carrier, and a sheriff in New Mexico splashed out $4,600 for an awards banquet. In one recent case, a suburban Atlanta sheriff spent $70,000 in forfeiture funds on a muscle car, a Dodge Charger Hellcat, that he uses solely to drive to and from work. The U.S. Justice Department called that purchase “extravagant.”
The U.S. Supreme Court has shown an interest in civil asset forfeiture in recent years. In 2017, Justice Clarence Thomas expressed doubts about whether civil forfeiture practices “can be squared with the Due Process Clause and our Nation’s history.” The following year, in a case litigated by the Institute for Justice, the high court ruled that the prohibition on excessive fines enumerated in the Eighth Amendment to the U.S. Constitution applies to state-level civil asset forfeiture procedures.
At the same time, unified opposition by law enforcement has limited and even scuttled reform efforts, and there’s reason to believe the coming years may see police pursue civil forfeiture aggressively. Activists protesting police brutality have pushed since this summer, with some success, to have cities reduce law enforcement funding, and state and city budgets nationwide are facing severe strain in the coming years, hit hard by the economic consequences of the coronavirus pandemic. A 2019study by an economics professor at Seattle University, published in collaboration with the Institute for Justice, suggests a link between funding constraints and forfeiture practices. When budgets tighten, the study found, police tend to pursue civil asset forfeiture with greater vigor.