Thank you for inviting me to testify today on Mississippi efforts to examine and reform its civil asset forfeiture laws. My name is John Malcolm. I am the Director and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.[1] The views I express in this testimony are my own, and should not be construed as representing any official position of The Heritage Foundation.

A great many states and Congress are currently considering measures to make the system more fair and to reign in the abuse of civil asset forfeiture laws, and I am pleased that Mississippi is joining them in addressing an area of law urgently in need of reform.

The History of Civil Forfeiture

Civil asset forfeiture is a legal tool whereby law enforcement agencies seize property suspected of being involved in, or the fruits of, illicit activity. It is premised on a legal fiction, albeit one of ancient lineage,[2] that property itself can be guilty of a crime and thereby forfeited to the sovereign. This process does not require any individual to be charged with, much less convicted of, any crime related to that property.[3]

The history of civil forfeiture law in the United States can be traced to admiralty and customs law, when vessels found to contain contraband were seized and forfeited, oftentimes because the owner of the cargo or vessel was beyond the reach of U.S. courts. At the time, the Supreme Court of the United States recognized, in United States v. The Brig Malek Adhel,[4] that, “this is done from the necessity of the case, as the only adequate means of suppressing the offence or wrong, or [e]nsuring an indemnity to the injured party.” For the next two centuries, other than a brief outburst of activity related to Prohibition when laws were revised to permit the seizure of vehicles used by bootleggers, forfeiture law largely remained confined to the enforcement of customs law.

By the 1970s, this had begun to change.[5] Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970, which declared “[a]ll controlled substances,”[6] “[a]ll raw materials…which are used, or intended for use, in manufacturing” controlled substances,[7] and “[a]ll conveyances” used to transport them to be forfeitable.[8] The Act was amended in 1978 to broaden the reach of forfeiture to include “[a]ll moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished” for the purchase of a controlled substance.[9] In 1984, Congress enacted the Comprehensive Crime Control Act,[10] and expanded forfeiture’s reach yet again to include “[a]ll real property” used to commit or facilitate a drug-related offense.[11]

The most significant shift in forfeiture law contained in the 1984 act, however, was the new ability of law enforcement agencies to retain the proceeds of successful forfeitures. Whereas prior law had directed forfeiture proceeds be deposited into the General Fund, the 1984 act redirected these funds into a new account—the Assets Forfeiture Fund—and empowered federal law enforcement agencies to spend this money outside the normal appropriations process. In 1992, Congress established a separate Treasury Forfeiture Fund into which agencies of the Treasury Department, such as the IRS, could deposit their forfeiture proceeds.[12] Thus, Congress brought civil asset forfeiture into mainstream law enforcement. The goal was to empower federal law enforcement officials to go after the illegal profits and ill-gotten property of drug kingpins and criminal organizations, thereby undercutting the profit incentives of the illegal drug trade—an admirable goal to be sure and one which remains important today.

While forfeiture law initially had a narrow and commendable goal, its scope has since expanded dramatically. Today, more than 400 federal statutes covering a wide array of crimes authorize forfeiture.[13] In addition, virtually every state, including Mississippi, has its own body of forfeiture laws. These statutes allow for the seizure of all manner of real and personal property, ranging from a family’s home to a small business’s bank account.

As forfeiture’s reach has grown, so too has the risk of seizing property from innocent people. Unfortunately, there are few procedural protections for innocent property owners. It is fair to characterize forfeiture law as being stacked against innocent owners in nearly every way possible.

Moreover, what began as a means to a laudable end has, in many instances, become the end itself, where law enforcement authorities appear to focus more on forfeiting money and property than catching and convicting criminals. The reason for this is the perverse profit incentive built into civil forfeiture law: Much, if not all, of the proceeds of successful forfeiture cases are retained by the agencies that do the initial seizing, providing them with a funding mechanism that is totally outside the normal legislative appropriations and oversight process. Police and sheriff’s departments and prosecutors’ offices often end up having a significant budgetary stake in the outcome of forfeiture cases and of the process in general. Indeed, a deputy sheriff in Kane County, Illinois, wrote in a training book that “[a]ll of our home towns are sitting on a tax-liberating gold mine.”[14]

The scope of civil asset forfeiture has also been dramatically expanded by the federal government’s equitable sharing program.[15] Under this program, state and local agencies may partner with the federal government, which prosecutes forfeiture cases under federal law and returns a portion—up to 80 percent—of the proceeds to the original seizing agency. In 2013, the Department of Justice paid out $657 million in equitable sharing payments. In fiscal year 2015, Mississippi law enforcement agencies received more than $2.72 million under this program[16]—funds that are, pursuant to federal rules governing the program, completely beyond the jurisdiction of the Mississippi state legislature. This has the effect of encouraging state and local law enforcement authorities to circumvent any state forfeiture laws which make it more difficult to seize and forfeit assets, or which impose greater control over how forfeiture funds may be spent.

Hundreds of law enforcement agencies and task forces across the country have grown dependent on forfeiture funds, seizing the equivalent of 20 percent or more of their annual budgets.[17] It is this direct financial stake in the scale and scope of forfeiture operations that has led some to denounce civil asset forfeiture as “policing for profit.” After all, government agencies should not be permitted to finance themselves independently from the legislative process. If a judge’s salary and office budget were determined to a great degree by the number and amount of fines that he imposed on criminal defendants appearing before him, many would question the judge’s objectivity and the fundamental fairness of the process.[18] The same is true with respect to civil asset forfeiture as it is currently practiced in most jurisdictions.

That “intersection of power and profit”[19] led Texas Supreme Court Justice Don Willet to pen a sharp dissent in a recent forfeiture case before the Texas high court, criticizing modern civil forfeiture as a system that “victimiz[es] innocent citizens who’ve done nothing wrong.”[20] In El-Ali v. Texas, Zaher El-Ali challenged Texas’s “innocent owner” defense, which, like federal law and the law in most states puts the burden on citizens in forfeiture cases to, in effect, prove their own innocence. Ali argued that this violated his due process rights under the Texas constitution, a challenge the Texas Supreme Court opted not to hear.

In his dissent to the denial of review, Justice Willet took modern forfeiture to task for treating property owners worse than criminals, with innocent owners “presumed guilty and required to prove their innocence.”[21] In Justice Willet’s view, decades of steadfast determination to expand the reach of his state’s forfeiture regime has resulted in a system that tests constitutional boundaries and prioritizes steady revenue streams over the legal rights of the citizens. As Justice Willet warned, “When agency budgets grow dependent on asset forfeiture, not as an occasional windfall or supplement but as indispensable revenue to fund basic operations, constitutional liberties are unavoidably imperiled.”[22]

Now, I would like to make something crystal clear. I have the utmost respect for law enforcement. I spent ten years in the Department of Justice as an Assistant United States Attorney, an Associate Independent Counsel, and a Deputy Assistant Attorney General in the Criminal Division. During the course of my career in these and other positions, I have dealt with hundreds, if not thousands, of law enforcement officials. I believe that the vast majority of law enforcement officers are dedicated public servants who perform their duties in a forthright and ethical manner. I also firmly believe that law enforcement authorities play a vital role in our society and have an incredibly difficult and dangerous job to do. For these and other reasons, law enforcement authorities should be adequately, indeed generously, funded.

That having been said, I recognize that states have many competing needs, policies, and goals. If forfeiture funds were deposited into a general revenue account, rather than retained by law enforcement agencies, there would be much greater accountability and oversight. Other agencies and interest groups must submit budget requests and justify these requests, and there is no reason this principle of good government ought not apply to law enforcement agencies as well. And regardless, even if law enforcement authorities are permitted to keep some or all of the proceeds from forfeitures that they initiate, the process for seizing and forfeiting property from its owners should be open and fair and the uses to which those funds are put should be transparent, which is not the case today. To do otherwise will only engender disrespect for the rule of law and will create an unnecessary and regrettable divide between law enforcement authorities and the general public, which is something our society can ill-afford.

Lack of Legal Protections in Civil Asset Forfeiture

One of the main criticisms against civil asset forfeiture is that the deck is stacked against any property owner who wishes to contest the forfeiture.[23] Because the legal proceedings are, as noted, against property rather than a person, property owners do not enjoy many of the ordinary constitutional protections that would be afforded to them if they were facing criminal charges.

First, a large number of forfeiture cases never see the inside of a courtroom.[24] At the federal level, between 1997 and 2013 an astounding 88 percent of cases were handled administratively—that is, the agency that stands to gain financially from the forfeiture gets to act as investigator, prosecutor, judge, and jury.[25] The rules and deadlines governing these proceedings are complicated and opaque, and are replete with technicalities and traps for the unwary (and likely unrepresented) property owner.

Second, unlike in a criminal case, there is usually no entitlement to representation by counsel or to a preliminary hearing.[26] Forfeitures are often for amounts small enough that it makes no rational economic sense to challenge a property seizure, since in many cases attorneys’ fees will outweigh the value of whatever has been seized. With no preliminary hearing, a person’s property can be tied up for months, even years, potentially creating extreme hardship, especially for those of modest means or those who are trying to run small businesses.[27]

Third, unlike in criminal cases, where prosecutors must prove a defendant’s guilt beyond a reasonable doubt, in civil forfeiture cases in Mississippi, prosecutors need only establish the basis for the forfeiture by a preponderance of the evidence,[28] a low standard given that the property at issue could be a person’s life savings or a family’s home. In recent years, a number of states have moved to heighten evidentiary standards in civil forfeiture cases to, for example, “clear and convincing” evidence. And while I have little doubt that many, possibly even the vast majority, of forfeitures are, in fact, meritorious, it should not be unduly burdensome for law enforcement authorities to satisfy a higher standard in meritorious cases, and such a standard would be much more protective of property owners and more appropriate given the quasi-criminal nature of the proceedings.[29]

Fourth, while Mississippi’s civil forfeiture laws have, quite laudably, been interpreted by the courts to place the burden on the state to prove, by a preponderance of the evidence, that the property owner had actual knowledge of the crime in question, or was willfully blind to it,[30] there is a significant exception. Money found “in close proximity to forfeitable controlled substances” is presumed to be forfeitable, and the “burden of proof is upon claimants of the property to rebut this presumption.”[31] This requires innocent owners to prove a negative—that the underlying crime was committed without their knowledge or consent—a difficult thing to do, and an inversion of the legal axiom that in a criminal context, one is innocent until proven guilty. Such a presumption, so long as it is rebuttable, may make sense if reasonable threshholds are established in the law, say, for example, a large amount of cash found in close proximity to a large quantity of drugs (Would anybody seriously doubt that $50,000 found near a kilogram of cocaine would not, in all likelihood, be connected to the sale of drugs?), but not for smaller amounts (such as someone with $200 in cash and a couple of joints of marijuana).

In an effort to compensate for these deficiencies, some states, including New Mexico,[32] Nebraska,[33] Minnesota,[34] Montana,[35] and New Hampshire[36] have recently reformed their civil forfeiture laws to require a criminal conviction as a prerequisite to a civil forfeiture action—that is, someone (usually the property owner) must be convicted of a crime before civil forfeiture of associated property is authorized. I understand the sentiment behind such a move. Many of the organizations Heritage has worked with on the forfeiture reform issue espouse such a standard. However, I believe that requiring conviction in all cases (or otherwise abolishing civil forfeiture) may be a bridge too far.

Consider a situation in which law enforcement authorities discover property clearly tied to criminal activity, such as a large sum of money in close proximity to a large quantity of drugs in a stash house, but cannot locate the property’s owner. Clearly nobody will return to claim the property now that the police are on the scene. In such a circumstance, it would make little sense to prevent the property from being forfeited until the owner can be located. Or suppose the owner is located but no charges are filed against him because either he is immunized in return for his cooperation against others or the charges are dismissed because of some procedural irregularity. In such circumstances, civil asset forfeiture might still be appropriate even though no conviction was obtained. Similarly, situations may arise where a property’s owner is beyond the reach of U.S. authorities, and therefore not able to be brought to trial. The property owner could be a fugitive from justice or a resident of a country without an extradition treaty. Circumstances such as these were the primary motivating factor behind the earliest admiralty forfeiture laws. In situations like these, a criminal conviction requirement would make it unduly difficult to achieve a just outcome; recognizing this, the Montana legislature created a series of reasonable exceptions to its new conviction requirement precisely to address the sort of situations I have outlined here.[37] While I fully endorse reforming forfeiture laws to make them more fair and transparent, I do not want to throw out the baby with the bath water. Any reform effort should take such circumstances into account.

Perverse Incentives of Forfeiture

Mississippi law allows agencies which seize property to retain the proceeds of successful forfeitures.[38] In the event that the underlying criminal investigation is conducted by a single law enforcement agency, forfeiture proceeds are divided between the seizing agency, which receives 80 percent of the sum, and the State Treasurer, who receives the remaining 20 percent for deposit into the state’s General Fund.[39] Should multiple agencies be involved, “the law enforcement agency whose officers initiated the criminal case” receives 80 percent of the proceeds, while the remainder is “divided equitably between or among the other participating law enforcement agencies.”[40] All funds are credited to the receiving agency’s budget and are available to be spent without the usual political oversight.[41] Law enforcement agencies may also “maintain, repair, use and operate for official purposes” seized and forfeited property, such as vehicles.[42]

It is impossible to assess with any certainty the scale of civil forfeiture under Mississippi state law because law enforcement agencies are not required to track their civil forfeiture activities. However, even without comprehensive state records, we can look to payments received by state agencies via the federal equitable sharing programs administered by the Justice and Treasury Departments to get a rough sense of forfeiture activities in the state. Between 2000 and 2013, Mississippi agencies received nearly $50 million in forfeiture proceeds in addition to any property and proceeds derived from state-law forfeiture cases.[43]

Just a few miles from here, in Richland, Mississippi, the town recently opened a $4.1 million police station paid for with the proceeds of property and cash seizures executed along a narrow strip of Interstate 20.[44] Forfeiture funds were used to buy the city a fleet of police vehicles and a “top-level training center” as well. The mayor, Mark Scarborough, has defended this use of forfeiture funds as a means of sparing taxpayers the burden of financing law enforcement activities and thus freeing public funds for other priorities. This is a common defense of forfeiture financing, but it frequently results in what is known as “budget supplanting,” where governments reduce future law enforcement budgets by the amount generated via forfeiture in prior years, on the expectation that the difference can be made up through civil forfeiture. Forfeiture funds effectively become a necessary source of revenue, and departments face tremendous pressure to seize property—on increasingly dubious grounds as budgetary pressure increases—to finance their basic operations.

It is unfortunate, but not surprising, that the financial incentive to seize cash and valuable property is so high that it sometimes warps the priorities of law enforcement officials, and can lead to overzealous and unjust enforcement efforts fueled by the desire to seize cash and property. Authorities in some jurisdictions have been known to allow people to commit crimes, just so they can later seize the cash that was earned from those crimes. The City Attorney of Las Cruces, New Mexico, for example, was caught on videotape telling a roomful of people how police officers waited outside a bar hoping that the owner of a 2008 Mercedes would walk out drunk because they “could hardly wait” to get their hands on his vehicle.[45]

In Tewksbury, Massachusetts, Russ Caswell had to fight for years to win back his family-run motel after local authorities partnered with the Drug Enforcement Agency (DEA) to seize and forfeit the property. The government’s rationale in that case: there had been 15 drug-related arrests at the Motel Caswell over a 14-year period. In the same period, he had rented over 200,000 rooms. In each case, Mr. Caswell had cooperated with the authorities, even going so far as to offer them free rooms as they conducted drug enforcement operations. During a deposition in that case, one DEA agent admitted that financial gain played a significant role in determining which properties would be selected for forfeiture. Mr. Caswell’s property, which he owned outright and later sold for $2.1 million, was a target too lucrative to pass up.[46]

Regrettably, there have also been alarming instances where the object of law enforcement operations was clearly to seize property rather than arrest suspected criminals. Minnesota’s somewhat infamous Metro Gang Strike Force was shut down after it was revealed that strike force personnel were seizing property from citizens for their own personal use, including television sets, cars, and cash.[47] In another case in Tennessee, officers of the 21st Judicial District Drug Task Force pulled over a refrigerated truck and discovered nearly $500,000 in cash, plastic wrapped and hidden throughout the vehicle. That money may well have been drug money, but the officers had absolutely no interest in arresting the potential courier, or even questioning him about his activities—they were caught on dashboard cameras pressuring the driver into signing away all rights to the money in exchange for his freedom.[48] And in Oklahoma, Sheriff Bob Colbert and Captain Jeffrey Gragg were recently indicted by a grand jury on felony counts of bribery and extortion for allegedly allowing a suspected drug dealer to go free in exchange for $10,000 in cash discovered in his vehicle.[49] The suspect was later arrested and convicted in Missouri on methamphetamine distribution charges and is awaiting sentencing.

Highway stops in general have become a real problem in some areas. A local news investigation in Tennessee revealed that drug task force officers were ten times more likely to patrol the westbound lanes of I-40 than the eastbound lanes.[50] Why? It was well known that illegal drugs from Mexico were transported into Nashville and across the state on the eastbound side of the highway, while the illegal drug profits flowed back on the westbound side of the road. The same thing happened, and may still be happening, in Volusia County, Florida;[51] Tenaha, Texas;[52] and other locations. Nationwide, there have been more than 62,000 roadside seizures since 2001, executed without warrants or indictments.[53]

Forfeiture-related traffic stops follow a common pattern. Drivers—usually those with out-of-state license plates—are stopped on some pretext. The officer then engages the driver in conversation and asks whether he is carrying any cash, and whether it is alright if the officer searches the car. If large amounts of currency are found, the officer claims it is somehow drug-related, even if no drugs or traces of drugs are present, and then seizes it. If a driver refuses to consent to a search of his vehicle, which he has a right to do, drug dogs are often brought in.

This is what happened when Straughn Gorman was stopped for a minor traffic violation on a highway in Nevada.[54] Gorman told the trooper he was on his way to California to visit his girlfriend, and intended to move there. He acknowledged that he was carrying cash, but refused to allow a search of his motorhome. The State Trooper let Gorman go, but then contacted another officer and alerted him that Gorman was heading his way, that he believed Gorman’s motorhome had large amounts of currency onboard, and that he should have his drug-sniffing canine standing by to ensure that troopers would have probable cause to search the vehicle. Gorman was pulled over for a second time shortly thereafter, on the pretext of a moving violation. Again, he refused to consent to a search of the vehicle. The second State Trooper had his drug dog sniff the vehicle, and the canine alerted to narcotics. A search ensued which uncovered over $167,000 in cash but no drugs of any kind. The entire sum was seized. Gorman elected to fight the seizure, and his case recently went to trial. The trial court judge ruled that it was clear that the state troopers had conspired to deprive Gorman of his 4th Amendment rights, and, worse still, that the U.S. Attorney’s office handling the case had not disclosed critical facts tying the two traffic stops together. The judge ordered that Gorman’s money be returned and invited him to file for attorney’s fees. That case is now being appealed.

Motorists are often threatened with criminal charges and pressured to sign away their rights to the property on the spot in exchange for not being arrested. In Tenaha, Texas, officials threatened to take children into child protective custody as a means of coercing parents to part with cash and valuables. Tenaha settled a class-action lawsuit on behalf of the dozens of motorists subjected to this treatment, and agreed to a multi-million-dollar payout.

The perverse incentives of forfeiture do not stop at the side of the road. The IRS and other agencies have seized and forfeited the bank accounts of individuals and small businesses for alleged “structuring” violations[55]—even when the authorities have no reason whatsoever to believe that the money in those accounts was derived from an illegal source. There are a great many legitimate and sensible reasons why honest businesses make regular cash deposits under $10,000, yet this did not stop the seizure of $63,000 from Maryland dairy farmers Randy and Karen Sowers, or $33,000 from Iowa restauranteur Carole Hinders. Mrs. Hinders was lucky enough to win her money back with the assistance of the public interest law firm, the Institute for Justice (IJ).[56] IJ also helped the cash-strapped Sowers, who initially agreed to a “settlement” in which the IRS kept roughly $30,000 of the Sowers’ hard-earned money. Just a few weeks ago—more than four years after the initial seizure—the IRS agreed to return all of their money.[57]

There are hundreds of documented instances where property or money has been seized from individuals under highly questionable circumstances. There are likely hundreds, if not thousands, more undocumented instances. The simple fact is that the perverse incentives of civil forfeiture encourage the seizure of property and a skewed legal system offers too few protections for innocent property owners.

Forfeiture: A Disproportionate Response

Another problem with civil forfeiture is that some seizures appear to be wildly disproportionate and unfair in relation to the alleged offense, and often reach property owners who are wholly innocent of any wrongdoing. In Detroit, Michigan, authorities raided a “Funk Night” event at the Contemporary Art Institute and seized 40 cars from the 130 attendees on the theory that the attendees were somehow responsible for the failure by organizers of the event to obtain a proper alcohol permit. Since the cars had transported the guests to the event, they were subject to seizure as “facilitating” property, and each attendee had to pay $900 to get his or her car back. A judge later determined the seizure was unconstitutional.[58]

In Philadelphia, law enforcement authorities have made a disturbing habit of seizing family homes because of minor crimes perpetrated on the property without the knowledge of the property owner. For example, Rochelle Bing’s son, Andrew Bing, sold crack cocaine to an undercover informant working for the Philadelphia police. Because the sales were conducted out of his mother’s house, Philadelphia moved to evict her and forfeit her home. Ms. Bing fought the forfeiture for two years, appearing in court 23 times before prosecutors finally agreed to drop the forfeiture action and let her keep her home.[59] Philadelphia authorities also attempted to seize the home of Chris and Markela Sourovelis, whose son had, unbeknownst to them, sold $40-worth of heroin to an undercover cop.[60] In both instances a crime was unquestionably committed, but do such minor offenses merit rendering families homeless, especially when the home owners were unaware of the crime?

Then there is the case of 77-year-old Margaret Davis, whose Philadelphia home was targeted for forfeiture after a drug dealer—in the midst of a police chase, no less—broke into her home and attempted to hide the drugs in his possession. The dealer had been able to gain easy access because Davis, bedridden due to serious medical ailments, relied on her neighbors to provide her care. She frequently left her doors unlocked so they could come in and tend to her. Despite the fact that Davis clearly was not involved, the Philadelphia District Attorney filed a motion to seize the property. Were it not for pro bono representation from a legal clinic at the University of Pennsylvania Law School, it is likely that Ms. Davis would have lost her home. Even with the clinic’s counsel, it took 18 months for the city to drop its efforts to seize Davis’s home.[61]

Fortunately, the Mississippi Supreme Court has adopted a test in civil forfeiture cases that reviews both the property’s instrumentality and the proportionality of the forfeiture to the underlying criminal offense. In One Charter Arms v. State, the court adopted a four-pronged test for determining the constitutionality of a forfeiture.[62] The test considers:

1. The nexus between the offense and the property and the extent of the property’s role in the offense;
2. The role and culpability of the owner;
3. The possibility of separating the offending property from the remainder; and
4. Whether, after a review of all relevant facts, the forfeiture divests the owner of property which has a value that is grossly disproportionate to the crime or grossly disproportionate to the culpability of the owner.[63]

In One Charter Arms, the state sought forfeiture of a Corvette whose owner had pled guilty to possession of cocaine, for which he was fined $2,500. The court, applying the test outlined above, determined that while the vehicle was forfeitable as an instrumentality of crime, such a forfeiture would be grossly disproportionate, owing to the fact that the cocaine was on the offender’s person, not hidden in the vehicle, that he had no prior convictions, and had already paid a fine and been placed on probation.

This is laudable, but it is worth pointing out that this type of judicial review of the proportionality of a seizure and forfeiture is only applied in cases that make it to a court. Many do not. Seizures may go uncontested for the simple fact that owners cannot afford to hire an attorney. And, as I have laid out, for many innocent property owners, their civil forfeiture cases begin and end on the side of a road.

Lack of Accountability and Oversight

Mississippi law provides law enforcement agencies with the means to generate potentially significant sums of money outside the normal appropriations process. Unfortunately, current law affords little in the way of transparency or accountability. Mississippi law enforcement agencies participating in seizure and forfeiture operations are not required to track or report their activities, meaning it is extremely difficult to know precisely the scale of these agencies’ forfeiture operations, the volume of funds they are bringing in, and how these funds are being spent.

It is difficult to imagine any other government agency generating and spending such significant sums of money in total secrecy, answerable to neither state nor local legislators. Such opacity creates the conditions for corruption and malfeasance. Even if forfeiture expenses are entirely above board, the public might be hard pressed to believe law enforcement authorities’ assertions of beneficence given their unwillingness to face public scrutiny.

As Louis Brandeis once said, “Sunlight is said to be the best of disinfectants.”[64] Indeed, in jurisdictions throughout the country where forfeiture laws provide police and prosecutors with an influx of cash and no real accountability, some law enforcement officials have spent their forfeiture funds in highly questionable ways. In Georgia, the Fulton County District Attorney used forfeiture proceeds to purchase sports tickets, paid for office parties, made donations to a lawyers’ group that inducted him into its hall of fame, and paid for a personal home security system for his private residence.[65] A former sheriff in Camden County, Georgia, spent $90,000 of forfeiture funds on a Dodge Viper to impress school kids as part of the Drug Abuse Resistance Education (DARE) program. He also used forfeiture money to pay prison inmates to build a private weekend home for himself, and donated $250,000 to his alma mater to finance a scholarship in his own name.[66]

In Oklahoma, audits of county forfeiture funds have revealed significant discrepancies and questionable practices pertaining to forfeited assets.[67] One assistant district attorney disregarded a court order to sell a forfeited home at auction, instead deciding to live in it rent-free for five years. Another assistant district attorney used $5,000 in forfeiture funds to make student loan payments. Law enforcement officials in other jurisdictions have used forfeiture funds to finance lavish “training” trips to exotic locales,[68] to purchase margarita machines[69] and a zamboni,[70] and, believe it or not, to procure marijuana and prostitutes.[71]

Here in Mississippi, the City of Bay St. Louis was recently taken to task by federal auditors over $300,000 in missing funds derived from the federal equitable sharing program.[72] The Justice Department noted that the police department did not properly report expenditures, allowed equitable sharing funds to be commingled with the city’s general fund, and failed to consistently follow proper internal procedures for documenting and approving expenditures. Worse still, DOJ officials noted that it had discovered “impermissible expenditures” of equitable sharing funds, which are, per the rules of the program, supposed to be spent only to further law enforcement activities. In light of the city’s many infractions, the Justice Department elected to freeze the city’s equitable sharing account, and barred the Bay St. Louis police from receiving or spending any further equitable sharing proceeds until “corrective actions are performed.”[73]

A lack of public oversight and accountability can also breed carelessness, sloppiness, and indifference on the part of some law enforcement officers. Consider the situation facing Hank Mosley and Tanya Andrews, residents of a boarding house who had the misfortune of living in the same building as a suspected drug dealer. When Philadelphia police raided the dealer’s room in 2011, officers also broke into Mosley’s and Andrews’s rooms, seizing $2,000 in cash from Mosley and another $1,500 from Andrews despite the fact that neither had any affiliation with the drug dealer. Several weeks later the dealer received notice that the district attorney intended to forfeit his assets. Mosley’s and Andrews’s cash was somehow listed as being in his possession, and thus subject to forfeiture. It was an easily resolvable error, but the city refused to acknowledge the mistake. Both had to hire attorneys. Andrews appeared in court five times before a judge ordered her funds returned. Mosley, meanwhile, had moved to Colorado, missed a court appearance, and lost his money by default.[74]

A lack of adequate oversight and accountability makes situations like these not only possible, but exceedingly difficult to detect. The effect is to create an atmosphere where public officials can bury indiscretions rather than identify responsible parties, effectively shielding themselves from public scrutiny. There is a strong public interest in rooting out government corruption, and an equally strong governmental interest in avoiding even the appearance of it. Neither interest is adequately served by the present system.

Funding Law Enforcement Without Civil Forfeiture

Forfeiture proceeds should be redirected to a neutral account or general revenue fund controlled by legislators, and appropriated through normal budgetary processes. Many in the law enforcement community view such a reform as a significant threat. I understand their concerns. Governments at all levels have endured hard times of late, with public funds—always a precious commodity—especially scarce. While many other governmental agencies can reduce the scope of their missions to deal with budget shortfalls, the job of policing our streets and protecting our communities is not often one that can be safely scaled back.

In light of these budget pressures, many have argued that police, sheriffs, and prosecutors will be inadequately funded without their continued control of forfeiture funds. While that is certainly possible, I am skeptical for several reasons.

First, it is worth noting that law enforcement agencies have only had access to forfeiture proceeds as a revenue source since 1985, when Congress first allowed federal agencies to retain the proceeds of their seizures. For two centuries before that, it was a well-established precept that proceeds derived from forfeiture were to be deposited into the general revenue fund.

Second, forfeiture reform is about rebalancing a skewed system, not about reducing the budgets of law enforcement agencies. If a particular agency’s approved budget does not adequately cover its needs, it will likely have a compelling case to make before the legislature as to why its budget allocation should be increased. Again, law enforcement agencies should be generously funded, but they should not be able to write their own check to subsidize their approved budgets, especially utilizing a process that is insufficiently protective of the rights of innocent property owners.

The power of the purse has historically rested with the elected legislators of our communities, our states, and our nation. This has always been considered essential to keeping the various agencies of government accountable to the people. There may well be harm to a particular agency if a legislature does not fully fund it. The harm to society is far greater, however, if that agency is able to circumvent the political process entirely. And given the powerful incentives and procedural deficiencies of current forfeiture law, the risk of abuse is simply too great.

Reforming Civil Forfeiture

There have been some positive developments, particularly at the state level, that may help to ameliorate some of these abuses, which you may wish to consider as you go about the task of reforming your own civil forfeiture law. The Justice Department is engaging in a “top-to-bottom” review of its forfeiture program and has already revised some of its polices regarding the equitable sharing program and seizures in “structuring” cases. Congress is presently debating legislative reforms, such as the Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures (DUE PROCESS) Act[75] and the Fifth Amendment Integrity Restoration (FAIR) Act,[76] which seek to rectify many of the inequities in federal forfeiture law.

Several states have recently passed forfeiture reform measures. For instance, Maine, North Dakota, and Vermont require that forfeiture funds be deposited into the state’s general treasury, and Missouri places those funds into an account earmarked for public education. Others, such as Connecticut, Florida, and Utah, have raised the standard of proof that the government must establish for a “preponderance of the evidence” to “clear and convincing evidence,”[77] while Wisconsin requires proof “beyond a reasonable doubt” to justify forfeiture.[78] Others, such as the District of Columbia, place the burden on the government to prove that an owner either did know, or was willfully blind to the fact, that his property was being used for an illegal purpose. Washington, DC’s reform also raised the burden of proof to “clear and convincing” when the property being seized is real property.[79] And Minnesota, Montana, Nebraska, North Carolina, New Mexico, New Hampshire, and Colorado have essentially abolished civil forfeiture at the state level, requiring a conviction or guilty plea from the property owner before a forfeiture proceeding can be instituted.[80] Michigan’s legislature recently passed a reform package that would raise the standard of proof to “clear and convincing” and impose a host of new reporting requirements designed to bring greater transparency to the state’s forfeiture system.[81]

Recently, The Heritage Foundation’s Meese Center released Arresting Your Property, a detailed report on civil asset forfeiture.[82] In it, we propose nine common-sense measures, some of which may be pertinent to and suitable for your purposes, that are intended to serve as guiding principles of forfeiture reform:

1. Restore legislative control of forfeiture proceeds by redirecting them to the General Fund. Law enforcement should not be a profit center. Lawmakers should bar law enforcement agencies from retaining the forfeiture funds they generate and mandate that these proceeds go instead to a jurisdiction’s General Fund.
2. Eliminate equitable sharing. The federal government should not be encouraging state and local law enforcement to bypass state and local laws. Equitable Sharing hampers state efforts to protect innocent property owners and reinforces the profit motives at the core of forfeiture abuse. Internal Justice Department policy changes are insufficient; the program should be abolished. Until then, states should consider policy reforms that disallow their law enforcement agencies from bypassing their own laws.
3. Raise the burden of proof. The government should be required to demonstrate that property is subject to forfeiture by “clear and convincing evidence,” a standard significantly higher than the current “preponderance of the evidence.”
4. Reaffirm the presumption of innocence. Property owners should not have to disprove the government’s case; rather, the burden should be on prosecutors to demonstrate that owners knew their property was being used in the commission of a crime.
5. Ban “bartering.” Property owners should not be pressured into waiving their rights on the side of a road or in the heat of the moment. All law enforcement agents should be barred from “bartering”—offering to let property owners go if they sign away their property on the spot.
6. Provide for indigent defense. Forfeiture is a highly complex system that most citizens are ill-prepared to face alone. Because of its quasi-criminal nature, claimants who cannot afford counsel should be able to petition a court for the appointment of counsel at the government’s expense, and victorious property owners who retained counsel should be afforded a chance to recoup their attorney’s fees.
7. Protect property owners’ rights in administrative forfeitures. Most federal civil forfeiture cases begin and end in the bowels of a federal agency. Agencies should be required to reform their internal procedures to make the process fairer and more transparent, clearly advising potential claimants about their rights to contest a seizure and to legal representation. Property owners should also be afforded the right to a prompt pre-seizure or immediate post-seizure hearing before a judge.
8. Ensure transparency through reporting requirements. Law enforcement agencies involved in civil forfeiture cases should be required to record the details of their seizures and forfeitures. These reports should specify what was seized, the amount or value of the seized goods, the alleged criminal conduct giving rise to the forfeiture, whether anyone was ever arrested for, or convicted of, said criminal conduct, whether the forfeiture action was challenged, the final disposition of the property or currency, and how forfeiture funds have been spent.
9. Provide for review of forfeiture settlements. Given the complexity of forfeiture law and the tremendous pressure that property owners face to settle forfeiture cases (sometimes because they are threatened with criminal charges if they continue to contest the forfeiture), in cases in which a claimant is not represented by counsel, any proposed settlement should be reviewed by a neutral third party, preferably a judge.

These reforms have been endorsed by 15 bipartisan national organizations, from the American Civil Liberties Union to the Institute for Justice. The full report is attached to this testimony.

As I have noted, I am skeptical of the necessity for a criminal conviction in all forfeiture cases. There are circumstances where property is undeniably linked to criminality, but where that property’s owner is simply beyond the reach of U.S. authorities, or where criminal prosecution may be otherwise impossible or unadvisable. In my view, such circumstances should be taken into consideration as part of any reform effort. Regardless, enhancing procedural protections for property owners will help ensure a fair system that protects the innocent.

Addressing the financial incentives of forfeiture is crucial. The best policy would be to restore legislative control of forfeiture funds. Alternatively, Mississippi could consider creating an oversight committee made up of retired judges and prosecutors and other interested and responsible members of the public (in other words, knowledgeable individuals who are not directly affiliated with the law enforcement office seeking the funds) that would be charged with approving the use of forfeiture funds by law enforcement authorities and with monitoring whether those funds were, in fact, used in the approved manner. While this would not eliminate the profit motive of law enforcement agencies, it would at least provide the public with a greater degree of confidence that forfeiture proceeds were being used in an appropriate manner that would best serve the public’s needs.

Despite forfeiture’s noble intentions, the many stories of innocent victims and law enforcement abuses—too many to ignore—indicate that the pendulum has swung too far in favor of law enforcement and that systemic problems exist that should be rectified. Yet, in reforming civil forfeiture laws, we must be careful not to swing the pendulum too far in the opposite direction. For the sake of all citizens, the process must be made fair and transparent, and the profit incentive in forfeiture should be abolished, or at the very least severely constrained and subjected to considerable oversight. Civil asset forfeiture should remain focused on its original purpose of depriving criminals of their ill-gotten gains, but we must be sure that it is criminals and only criminals who are being impacted.

Thank you for your invitation to testify today. I would be happy to answer any questions you may have.

 

Endnotes

[1] The title and affiliation are for identification purposes. Members of The Heritage Foundation staff testify as individuals discussing their own independent research. The views expressed here are my own, and do not reflect an institutional position for The Heritage Foundation or its board of trustees, and do not reflect support or opposition for any specific legislation.

[2] See, e.g., Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680–686 (1974) (discussing history of forfeiture); Charles Doyle, Crime and Forfeiture, Congressional Research Service (Jan. 22, 2015), available at http://fas.org/sgp/crs/misc/97-139.pdf (discussing history of forfeiture); Donald J. Boudreaux & A. C. Pritchard, Civil Forfeiture and the War on Drugs: Lessons from Economics and History, 33 San Diego L. Rev. 79, 135 (1996).

[3] Civil forfeiture proceedings are considered in rem (Latin for a proceeding “against the thing”), rather than in personam (Latin for a proceeding “against the person”).

[4] 43 U.S. (2 How.) 210, 233 (1844). See also The Palmyra, 25 U.S. (12 Wheat.) 1 (1827).

[5] For a brief history of the early ramp-up of forfeiture at the federal level, see Marc Stahl, Asset Forfeiture, Burdens of Proof and the War on Drugs, 83 Northwestern J. Crim. L. & Criminology, 276-278 (1992), http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6741&context=jclc.

[6] 21 U.S.C. § 881(a)(1).

[7] 21 U.S.C. § 881(a)(2).

[8] 21 U.S.C. § 881(a)(4).

[9] 21 U.S.C. § 881(a)(6).

[10] Pub.L. 98-473, 98 Stat. 1976 (1984).

[11] 21 U.S.C. § 881(a)(7).

[12] Treasury Department Appropriations Act, Pub.L. 102-393.

[13] For a list of many of these statutes, see Charles Doyle, Crime and Forfeiture, Congressional Research Service (January 22, 2015), available at http://fas.org/sgp/crs/misc/97-139.pdf.

[14] Robert O’Harrow, Jr., Michael Sallah, & Gabe Silverman, Stop and Seize, Wash. Post, Sep. 6, 2014, available at http://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/.

[15] 21 U.S.C. § 881(e)(3) provides the Attorney General with authority to transfer property forfeited under federal law to participating state and local law enforcement agencies.

[16] See, Department of Justice FY 2015 Asset Forfeiture Fund Reports to Congress (2016), available at https://www.justice.gov/afp/fy2015-asset-forfeiture-fund-reports-congress.

[17] O’Harrow, supra note 14.

[18] Indeed, in Tumey v. Ohio, 273 U.S. 510 (1927), the Supreme Court unanimously reversed a conviction on due process grounds because the judge in the case had a direct pecuniary interest in the outcome of the case. Writing for the Court, Chief Justice William Howard Taft stated that “it certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct personal, substantial pecuniary interest in reaching a conclusion against him in his case.” Id. at 523.

[19] El-Ali v. State, 428 S.W.3d 824 (Tex. 2014) (Willett, J., dissenting from denial of review).

[20] Id. at 4.

[21] Id. at 5.

[22] Id. at 7.

[23] In 2000, Congress passed the Civil Asset Forfeiture Reform Act (CAFRA), which was designed to provide claimants with some modest additional protections, including affording an owner the opportunity to petition the court for release of certain kinds of property pending the completion of forfeiture proceedings, establishing an “innocent owner’s” defense, allowing an indigent claimant who is already represented by court-appointed counsel in connection with a related federal criminal case to request the assistance of court-appointed counsel to contest the forfeiture, and requiring the government to pay attorney’s fees and costs if it loses a forfeiture action. Property owners, however, are rarely apprised of their rights under CAFRA, and because most forfeitures are administrative, its provisions are rarely invoked.

[24] See Federal Asset Forfeiture: Uses and Reforms, Hearing Before the Subcomm. on Crime, Terrorism, Homeland Security, and Investigations of the H. Comm. on the Judiciary, 114th Cong. (2015) (testimony of David B. Smith), available at http://judiciary.house.gov/_cache/files/e1528de2-86fc-4bc4-b1d2-0fd1075ff554/smith-testimony.pdf.

[25] Dick Carpenter et al., Policing for Profit (2nd Edition), Inst. for Justice (Nov. 2015), http://ij.org/report/policing-for-profit/.

[26] CAFRA codified the right to a pre-seizure hearing in real property cases, as originally articulated by the Supreme Court in United States v. James Daniel Good Real Property, 510 U.S. 43 (1993). See 18 U.S.C. § 985. However, this right exists only if the property is physically seized. “Constructively” seizing the property, such as posting a notice of complaint or filing a lis pendens notice, carries no such right. Consequently, actual seizure by the government of real property is rare so as to avoid this hearing requirement.

[27] In 2012, the assets of Bi-County Distributors, Inc., a small, family-run business that sold snacks, candy, and cigarettes to local convenience stores, were seized over alleged structuring violations. For two and a half years, the federal government retained the assets without filing a forfeiture action or charging the owners with a crime. Held Up: Feds Use Civil Forfeiture to Seize More than $446,000 from Innocent Family Business; Deny Hearing for More than Two Years, Institute For Justice, Litigation Backgrounder, available at http://www.ij.org/long-island-forfeiture-backgrounder.

[28] Commonwealth v. $6,425.00 Seized From Esquilin [Need complete cite from Tiff].

[29] There is a long history of jurisprudence blurring the line between civil and criminal proceedings in forfeiture cases. In Boyd v. United States, 116 U.S. 616, 634 (1886), the Supreme Court determined that “forfeitures incurred by the commission of offenses against the law are…quasi-criminal [in] nature.” Relying on its holding in Boyd, the Court applied the exclusionary rule, previously reserved for criminal prosecutions, to certain civil forfeiture cases in One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965). The Court also acknowledged in Austin v. United States, 509 U.S. 602 (1993), that certain forfeitures are bound by the limits of the Excessive Fines Clause. And in U.S. v. Bajakajian, 524 U.S. 321 (1998), the Court adopted a gross disproportionality test to determine whether such a forfeiture violates the Excessive Fines Clause.

[30] Ervin v. State, 434 So.2d 1324 (Miss. 1983); Curtis v. State, 642 So.2d 381 (Miss. 1994).

[31] Miss. Code Ann. § 41-29-153(a)(7).

[32] New Mexico Legislature, House Bill 560, signed by Governor Susanna Martinez on April 10, 2015. Available at http://www.sos.state.nm.us/uploads/files/CH152-HB560-2015(1).pdf; Jason Snead, Both parties in New Mexico and elsewhere see bad problems in good-intentioned civil forfeiture laws, Wash. Times, Mar. 30, 2015, http://www.washingtontimes.com/news/2015/mar/30/jason-snead-civil-forfeiture-reform-bipartisan-iss/.

[33] Nebraska Legislature, L.B. 1106, Amendments, Revisions, and Provisions Relating to Forfeiture of Property, 2016 Regular Session, http://nebraskalegislature.gov/FloorDocs/Current/PDF/Slip/LB1106.pdf; Jason Snead, Nebraska Abolishes Civil Forfeiture, Daily Signal, Apr 22, 2016, http://dailysignal.com/2016/04/22/nebraska-abolishes-civil-forfeiture/.

[34] Minnesota Legislature, S.F. 874, Criminal Justice, Judicial Forfeiture Provisions, and Statutory Amendments, 88th Session, https://www.revisor.mn.gov/bills/text.php?version=latest&session=ls88&number=SF0874&session_year=2014&session_number=0&format=pdf.

[35] Montana Legislature, H.B. 463, Revision of Forfeiture Laws, 64th Session, http://leg.mt.gov/bills/2015/billpdf/HB0463.pdf.

[36] New Hampshire Legislature, S.B. 522, Forfeiture Limitations, 2016 Regular Session, http://www.gencourt.state.nh.us/bill_status/billText.aspx?id=1156&txtFormat=html; Jason Snead, How a New Hampshire Law Will Protect Private Property From Government Seizure, Daily Signal, Jun. 3, 2016, http://dailysignal.com/2016/06/03/how-a-new-hampshire-law-will-protect-private-property-from-government-seizure/.

[37] In Montana, a criminal conviction is not required if the seized property is a controlled substance or if the property owner “dies, is deported, or is unknown or if the owner of the property flees after the prosecution is commenced and is not apprehended within 12 months.” Montana, supra note 35.

[38] Miss. Code Ann. § 41-29-181(2). There are, however, some narrow exceptions. Miss. Code Ann. § 97-17-4 provides that all funds derived from the forfeiture of money and property related to the crime of arson shall be deposited in the General Fund of the State Treasurer. Miss. Code Ann. § 97-43-11 provides that funds derived from the seizure of money and property in Racketeer Influences and Corrupt Organization Act (RICO) cases shall be deposited in the General Fund.

[39] Miss. Code Ann. § 41-29-181(2)(a).

[40] Miss. Code Ann. § 41-29-181(2)(b).

[41] The only exception to this relates to proceeds awarded to the Mississippi Bureau of Narcotics, which are deposited into “a special fund for use by the Mississippi Bureau of Narcotics upon appropriation by the Legislature.” Miss. Code. Ann. § 41-29-181(4).

[42] Miss. Code Ann. § 41-29-181(7)(a).

[43] Carpenter, supra note 25, at 95. The total, $49.973 million includes $47,067,047 in equitable sharing funds from the Justice Department’s program and $2,906,000 in funds paid from the Treasury Department’s equitable sharing program.

[44] Steve Wilson, Richland’s $4.1 million police station funded by civil forfeiture, Mississippi Watchdog, May 18, 2015, http://watchdog.org/218867/civil-forfeiture/.

[45] See Laura Sullivan, Police Can Seize and Sell Assets Even When the Owner Broke No Law, NPR (Nov. 10, 2014), http://www.npr.org/blogs/thetwo-way/2014/11/10/363102433/police-can-seize-and-sell-assets-even-when-the-owner-broke-no-law.

[46] See, United States v. 434 Main Street, Tewksbury, Mass. (The Motel Caswell) Federal & Local Law Enforcement Agencies Try to Take Family Motel from Innocent Owners, The Institute for Justice, available at https://www.ij.org/massachusetts-civil-forfeiture; Melissa Quinn, After Having His Motel Seized by the Government, Victim of Civil Asset Forfeiture Reflects on His Fight, Daily Signal (May 7, 2015), available at http://dailysignal.com/2015/05/07/after-having-his-motel-seized-by-the-government-victim-of-civil-asset-forfeiture-reflects-on-his-fight/.

[47] See Randy Furst, Victims of Metro Gang Strike Force Awarded $840,000, Star Tribune (July 23, 2012), http://www.startribune.com/local/minneapolis/163478566.html. Minnesota now requires a criminal conviction before civil forfeiture proceedings can be initiated, and the standard of proof has been raised to “clear and convincing evidence.” See Ilya Somin, Minnesota Adopts Law Curbing Asset Forfeiture Abuse, Volokh Conspiracy (May 10, 2014), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/05/10/minnesota-adopts-law-curbing-asset-forfeiture-abuse/.

[48] Phil Williams, Video Shows Officer Offering Truckers Freedom For Cash, News Channel 5 (May 7, 2011), available at http://www.scrippsmedia.com/newschannel5/news/newschannel-5-investigates/policing-for-profit/265578721.html.

[49] Jason Snead, Grand Jury Indicts Sheriff for Wrongly Taking $10,000 From Traffic Stop, Daily Signal (Apr. 6, 2016), http://dailysignal.com/2016/04/06/grand-jury-indicts-sheriff-for-wrongly-taking-10000-from-traffic-stop.

[50] See, e.g., Phil Williams, I-40 Search Raises New “Policing for Profit” Questions, News Channel 5 (Nov. 11, 2014), http://www.jrn.com/newschannel5/news/newschannel-5-investigates/policing-for-profit/I-40-Search-Raises-New-Policing-For-Profit-Questions-282197971.html; Officer Larry Bates: Liar, Thief, and the Face of “Asset Forfeiture” in Tennessee, Republic Magazine, http://www.republicmagazine.com/videos/officer-larry-bates-liar-thief-and-the-face-of-asset-forfeiture-in-tennessee.html; Phil Williams, Middle Tennessee Police Profiting Off Drug Trade?, News Channel 5 (May 16, 2011), http://www.jrn.com/newschannel5/news/newschannel-5-investigates/policing-for-profit/265578741.html.

[51] See, e.g., James Bovard, Seizure Fever: The War on Property Rights, The Freeman (Jan. 1, 1996), http://fee.org/freeman/detail/seizure-fever-the-war-on-property-rights/; Roger Pilon, America’s Frightening “Policing for Profit” Nightmare, Nat’l Interest (Jan. 23, 2015), http://nationalinterest.org/feature/americas-frightening-policing-profit-nightmare-12094; Jeff Brazil & Steve Berry, Tainted Cash or Easy Money?, Orlando Sentinel (June 14, 1992), http://articles.orlandosentinel.com/1992-06-14/news/9206131060_1_seizures-kea-drug-squad.

[52] See, e.g., Elora Mukherjee, Settlement Means No More Highway Robbery in Tenaha, Texas, ACLU Blog (Aug. 9, 2012), https://www.aclu.org/blog/criminal-law-reform-racial-justice/settlement-means-no-more-highway-robbery-tenaha-texas; Sarah Stillman, TAKEN: Under Civil Forfeiture, Americans Who Haven’t Been Charged with Wrongdoing Can Be Stripped of Their Cash, Cars, and Even Homes. Is That All We’re Losing?, New Yorker, Aug. 12, 2013, available at http://www.newyorker.com/magazine/2013/08/12/taken.

[53] This number only accounts for seizures which were then handed off from local to federal authorities in exchange for payouts under the equitable sharing program. O’Harrow, supra note 14.

[54] United States v. $167,070.00 in United States Currency, No. 3:13–CV–00324–LRH–VPC, 2015 WL 3658069 (D. Nev. June 12, 2015).

[55] See, 31 U.S.C § 5324.

[56] See, e.g., Shaila Dewan, I.R.S. Asset Seizure Case Is Dropped by Prosecutors, N.Y. Times, Dec. 13, 2014, available at http://www.nytimes.com/2014/12/14/us/irs-asset-forfeiture-case-is-dropped-.html?_r=0; Chris Carson, Iowa Restaurant to Close Its Doors After IRS Seizes Accounts; No Crime Committed, KDAT (Oct. 29, 2014), http://kdat.com/iowa-restaurant-to-close-its-doors-after-irs-seizes-accounts-no-crime-committed/.

[57] See, e.g., Jonathan Turley, Federal Prosecutors Seize Creamery’s Accounts Under Terror Financing Law, jonathanturley.org (June 28, 2013), http://jonathanturley.org/2013/06/28/federal-prosecutors-seize-creamarys-accounts-under-terror-financing-law/; Md. Farmer Settles Federal Financial Probe, CBS Baltimore (May 31, 2012), http://baltimore.cbslocal.com/2012/05/31/md-farmer-settles-federal-financial-probe/; Paul Strand, Felon Farmers? Law Criminalizes Legitimate Businesses, CBN News (Oct. 1, 2012), http://www.cbn.com/cbnnews/us/2012/july/felon-farmers-law-criminalizes-legitimate-businesses/; Melissa Quinn, IRS to Return $30K It Seized From Maryland Dairy Farmers, Daily Signal (June 29, 2016), http://dailysignal.com/2016/06/29/irs-to-return-30k-it-seized-from-maryland-dairy-farmers/.

[58] See, e.g., Press Release, Federal Judge Rules CAID Raid Arrests and Car Seizures Unconstitutional, ACLU (2012), available at https://www.aclu.org/criminal-law-reform/federal-judge-rules-caid-raid-arrests-and-car-seizures-unconstitutional; Lee DeVito, John Oliver Revisits “the Funkiest Shakedown in Human History,” the CAID Raid, Metro Times (Oct. 7, 2014), http://www.metrotimes.com/Blogs/archives/2014/10/07/john-oliver-revisits-the-funkiest-shakedown-in-human-history-the-caid-raid.

[59] Isaiah Thompson, Law to Clean Up ‘Nuisances’ Costs Innocent People Their Homes, ProPublica (Aug. 5, 2013), available at http://www.propublica.org/article/law-to-clean-up-nuisances-costs-innocent-people-their-homes.

[60] Joel Mathis, D.A. Drops Forfeiture Cases That Drew National Attention, Philadelphia (Dec. 19, 2014), available at http://www.phillymag.com/news/2014/12/19/d-drops-forfeiture-cases-drew-national-attention/.

[61] Ronald Rotunda, Civil Forfeiture in Philadelphia, Verdict (Oct. 6, 2014), available athttps://verdict.justia.com/2014/10/06/civil-forfeiture-philadelphia.

[62] 721 So.2d 620 (Miss. 1998).

[63] Id at 624-625.

[64] Louis D. Brandeis, Other People’s Money, and How the Bankers Use It, New York, Frederick A. Stokes company (1914).

[65] See Report: Fulton DA Spent Public Funds on Parties, Athens Banner-Herald (June 7, 2013), http://onlineathens.com/local-news/2013-06-07/report-fulton-da-spent-public-funds-parties.

[66] See, e.g., Paul Pinkham, Georgia Inmates Reportedly Did Work out of State, Florida Times-Union, Oct. 14, 2007, available at http://jacksonville.com/tu-online/stories/101407/met_208183322.shtml; John Burnett, Sheriff Under Scrutiny over Drug Money Spending, NPR (June 18, 2008), http://www.npr.org/templates/story/story.php?storyId=91638378; Terry Dickson, Former Camden Sheriff Challenges Incumbent to Get Job Back, jacksonville.com (July 30, 2012), http://jacksonville.com/news/crime/2012-07-30/story/former-camden-sheriff-challenges-incumbent-get-job-back; Teresa Stepzinski & Terry Dickson, A Tool to Fight Crime or Just a Lot of Flash?, Florida Times-Union, Aug. 7, 2002, available at http://jacksonville.com/tu-online/stories/080702/met_10114798.html.

[67] See Clifton Adcock, Law Enforcement Seizures Misspent, Missing, OklahomaWatch (July 15, 2015), http://oklahomawatch.org/2015/07/15/law-enforcement-seizures-misspent-missing/.

[68] See Mark Collette, As New Questions Emerge, Former District Attorney Garza Speaks About Forfeiture Funds, caller.com (Jan. 22, 2012), http://www.caller.com/news/as-new-questions-emerge-former-district-attorney.

[69] See Renee Lee, Montgomery DA Says Funds Used for Liquor at Cook-off, Chron (Mar. 18, 2008), http://www.chron.com/neighborhood/humble-news/article/Montgomery-DA-says-funds-used-for-liquor-at-1757341.php.

[70] See Laura Krantz & Jessica Trufant, Audit: Worcester DA’s Office Bought Zamboni, Lawn Gear with Forfeited Drug Money, MetroWest Daily News (Feb. 15, 2013), http://www.metrowestdailynews.com/x1522323792/Audit-Worcester-DAs-office-bought-Zamboni-lawn-gear-with-forfeited-drug-money#ixzz2LH4vHjJv.

[71] See Melanie Scott Dorsey, Ex-Romulus Police Chief, Wife, 5 Officers Head to Trial, Detroit Free Press, Sept. 27, 2012, available at http://www.freep.com/article/20120927/NEWS02/309270120/Ex-Romulus-police-chief-wife-5-officers-head-to-trial; Dave Bartkowiak, Jr., Ex-Romulus Police Chief Sentenced for Corruption, Click On Detroit (Oct. 17, 2014), http://www.clickondetroit.com/news/exromulus-police-chief-sentenced-for-corruption/29196354; Guy Burns, Romulus Police Chief’s Wife, Patricia St. Andre, Gets 7 to 20 Years in Prison for Operating Criminal Enterprise, mlive.com (Feb. 20, 2014), http://www.mlive.com/news/detroit/index.ssf/2014/02/romulus_police_chiefs_wife_pat.html.

[72] Wesley Muller, Where’s the DOJ money? Feds issue report on Bay St. Louis’ missing $298K, SunHerald (Nov. 28, 2015), http://www.sunherald.com/news/local/counties/hancock-county/article46979445.html; Mayor Les Filingame, Memo to City of Bay St. Louis, http://slabbed.org/wp-content/uploads/2016/02/DOJ-Equitable-Sharing-Report.pdf.

[73] Id.

[74] Guilty Property: How Law Enforcement Takes $1 Million in Cash from Innocent Philadelphians Every Year – and Gets Away With It, American Civil Liberties Union of Pennsylvania (June 2015), available at http://www.aclupa.org/files/3214/3326/0426/Guilty_Property_Report_-_FINAL.pdf.

[75] DUE PROCESS Act, H.R. 5283, 114th Cong. (2016), available at https://judiciary.house.gov/wp-content/uploads/2016/05/Due-Process-Act-text.pdf. The companion bill in the Senate is S. 3045. Jason Snead and John Malcolm, Forfeiture Reform Advances in the Senate, Daily Signal, Jun. 10, 2016, http://dailysignal.com/2016/06/10/forfeiture-reform-advances-in-the-senate/.

[76] FAIR Act, S. 255, 114th Cong. (2015), available at http://www.paul.senate.gov/files/documents/ALB15102.pdf. The companion bill in the House of Representatives is H.R. 540.

[77] Conn. Gen. Stat. § 54-36h (b); Fla. Stat. § 932.704 (8); Utah Code 24-1-4 (6)(c).

[78] Wisconsin Statute section 973.076(3) establishes that the “state shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence” that property is subject to civil forfeiture.

[79] See Jason Snead & Andrew Kloster, Washington, D.C., Civil Forfeiture Reform: A Model for the States, Heritage Foundation Issue Brief No. 4312 (Dec. 5, 2014) available at http://www.heritage.org/research/reports/2014/12/washington-dc-civil-forfeiture-reform-a-model-for-the-states.

[80] Regarding Minnesota, see Minnesota, supra note 34. For Montana, see Montana, supra note 35. For Nebraska, see Nebraska, supra note 33. In North Carolina, civil forfeiture actions (G.S. § 1-532) are initiated pursuant to G.S. § 14-2.3, which requires that forfeiture actions be filed within three years of the date of conviction. Colorado Revised Statutes 16-13-307 requires that a property owner be convicted of a specified offense before a judgment of forfeiture may be entered. For New Mexico, see New Mexico, supra note 32. For New Hampshire, see New Hampshire, supra note 36.

[81] Anne Schiebler, Unanimous Forfeiture Vote Brings Greater Transparency and Accountability, Mackinac Center (Oct. 7, 2015), available at http://www.mackinac.org/21794.

[82] Available at http://www.heritage.org/forfeiturereform. For a sampling of instances of abuses and questionable civil forfeitures, see http://www.heritage.org/forfeitureabuse.