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State Forfeiture Reform Legislation

 Revised March 8, 2016

This section covers recent legislation and lobbying activities related to the reform of state forfeiture laws. Since state forfeiture reform activities are difficult to find, we would appreciate it if you would be on the lookout for material not covered here or in need of update, and forward it to Brenda Grantland for inclusion.  If you would be willing to watch your state's forfeiture-related proposed legislation and report on it for FEAR, please email us.

All state forfeiture laws

 

Overview of each state's forfeiture laws: The Institute for Justice' Policing for Profit: The Abuse of Civil Asset Forfeiture is the most comprehensive national study to examine the use and abuse of civil asset forfeiture and the first study to grade the civil forfeiture laws of all 50 states and the federal government. The IJ report identified only three states with asset forfeiture laws and practices rated as "B" or higher.

 

Institute for Justice' Model State Forfeiture Law: To help states improve their law, IJ commissioned a team of experts to draft a model asset forfeiture law that every state legislature could adopt completely or in parts. Building on the laws in those three states, the comprehensive document is premised on two simple but important ideas: (1) law enforcement agencies should not profit from forfeiture and (2) a jury should find the accused guilty of a crime before the state takes final title to his or her property. (Word version of IJ model state asset forfeiture law here.)

 

Arizona Law Review: Reforming the Civil Asset Forfeiture Reform Act, by Eric Moores , Vol. 51, 777 (2009). This 26 page law review article examines "the dangers created by the current civil asset forfeiture program and proposes changes necessary to create a fairer process." While the author's focus "is primarily on federal civil asset forfeiture and CAFRA" (Civil Asset Forfeiture Reform Act of 2000),

"it includes examples of abuses at the state and local levels to provide a more complete picture of the problems the system presents. Many  state governments modeled their civil asset forfeiture systems after federal legislation.  For example, nearly every state adopted the Uniform Controlled Substances Act, which is similar to federal narcotics laws and authorizes forfeiture of property related to drug crimes. UNIF. LAW  COMM’RS, UNIFORM CONTROLLED  SUBSTANCES  ACT, http://www.nccusl.org/nccusl/uniformact_summaries/ uniformacts-s-ucsa90.asp (last visited August  12, 2009). Because of the commonalities in their structures, the abuses at both levels are similar as well. Thus, state lawmakers must also take action if civil asset forfeiture laws are to be reformed to ensure a fair system.

 

 

Alabama

 

Alaska

 

Arizona

 

Arkansas

 

...In 1999, the Arkansas legislature amended its forfeiture law in order to curb some of the more outrageous abuses of seizure and forfeiture. ... Still, a review of the records reveals abuses. ... Law enforcement officers in some jurisdictions take even small amounts of cash, even though it is recognized that small amounts of cash are not likely to be involved in drug crimes. Many officers operate under the idea that even a tiny amount of drugs in someone's possession justifies taking all the money he or she might have.


Amounts under $500 are common. For example, a quick review of the asset seizure tracking record for 2000 reveals amounts such as $10.44, $18, $8, $5, $15, $20, $16.66, $6.14, and $18.20.  Obviously these are not the cash fortunes of drug kingpins.

Law enforcement agencies also fail to follow the requirements of the new law. ...

 

California

The Supreme Court ruling invalidates forfeiture ordinances across California!

 

Colorado

Connecticut

Connecticut’s civil forfeiture laws are not as bad as the laws in many states.  For the government to forfeit your property, it must have clear and convincing evidence that the property in question is related to criminal activity and thus subject to forfeiture.  However, once property has been seized, innocent owners have the burden of proving that they did not know the property was being used in connection with criminal activity.  Connecticut law enforcement keeps 60 percent of the proceeds from civil forfeiture.  There is no requirement that the state collect data on forfeitures or proceeds from them.

These laws, however, can still lead to abuse.  For instance, in 2001, Debbie Kerpen had $2.76 million, her cars, horse trailers, boat and tractor seized because of her alleged role as head of a call girl service—all without a single charge being filed against her.  Unfortunately for Debbie, as ACLU President Nadine Strossen put it, “She’s facing a greater penalty than she would under any applicable criminal law, without any of the constitutional protections.”[1]

1 Pagnozzi, A. (2001, July 24). ‘Legal’ excuse to steal. Hartford Courant, p. A3.

 

Delaware

Delaware has terrible civil forfeiture law, scoring an F on the law grade.  The state’s final grade is pulled up to a C only by limited use of equitable sharing (an evasion grade of A) to date.  In Delaware, the government only needs to show probable cause to forfeit property.  If an innocent owner objects, the owner has the burden of showing that the property was wrongfully seized or not subject to forfeiture.  These problems are compounded by the fact that law enforcement in Delaware keeps 100 percent of the revenues generated by civil forfeitures, creating a perverse incentive to seize as much property as possible.  Fortunately for Delaware citizens, law enforcement in the state does not seem to have used forfeiture as aggressively as the law permits.  It is hard to know the extent of forfeiture in Delaware, though, because there is no provision under state law that requires data to be collected or reported.

Florida

Florida’s civil forfeiture laws provide some protections for property owners but also give law enforcement a large incentive to use forfeiture—and agencies appear to do just that.  The government must prove by clear and convincing evidence that the property was related to criminal activity and thus can be forfeited, a higher standard than most states but still less than the beyond a reasonable doubt standard required for a criminal conviction.  Also, in Florida owners are not presumed guilty; instead, the government bears the burden in an innocent owner defense. 

 

Georgia

 

Hawaii

 

Idaho

 

Illonois

Indiana

Iowa

 

Kansas

 

Kentucky

Kentucky civil forfeiture law affords inadequate protection to property owners.  The state must only show that the property is related to criminal activity and can be forfeited by a preponderance of the evidence, a standard significantly lower than that required for criminal guilt.  And property owners have the burden of proof in an innocent owner claim unless it is real property, such as a home or land.  Moreover, law enforcement agencies receive 100 percent of the value of any forfeited assets, creating an incentive for law enforcement to focus on forfeiture rather than crime prevention. 

The perverse incentives of profit-oriented civil forfeiture law are exemplified in the 1996 scandal in Paducah, Ky., where $66,000 was discovered at the headquarters of the Western Area Narcotics Task Force (WANT).  Investigators found that “the task force had seized large amounts of money and then dispensed it freely, unconstrained by audits, reporting requirements, or the task force’s mission.”[1]  With such a large profit motive, “WANT made asset seizures a priority, mandating expected forfeiture growth rates.  But WANT met its quotas with much more zeal than care.  The police chief estimated that 60 percent of the money found in WANT headquarters will be returned to the owners because it was not properly seized.”[2]  As this report found, law enforcement officials are now required to collect forfeiture data in Kentucky, but the information provided was unreliable.

1 Blumenson, E., & Nilsen, E. (1998). Policing for profit: The drug war’s hidden economic agenda. University of Chicago Law Review, 65(1), 35-114.
2 Id.

 

Louisiana

 

Maine

 

Maryland

 

Massachusetts

 

Michigan

 

Minnesota

Mississippi

Mississippi provides minimal protections for property owners from civil forfeiture abuse.  The state only needs to prove by a preponderance of the evidence that the property is related to a crime and thus forfeitable, a standard lower than the beyond a reasonable doubt required for a criminal conviction.  Moreover, the burden is on the property owner to prove his innocence, effectively making him guilty until proven innocent.  Law enforcement collects 80 percent of the proceeds from any seizures, thus ensuring a profit motive for law enforcement to pursue forfeitures.  There is no legal requirement that law enforcement collect or report data on forfeiture use or proceeds.  

Some law enforcement agencies in Mississippi seem to have become reliant on such funds to operate.  The Hattiesburg Police Department, for example, took in around $1.4 million over the past six years.[1]  Hattiesburg City Council President Kim Bradley admits that “forfeiture funds are a tremendous help, especially with the recent state budget cuts.”  In the current recession, law enforcement could feel increased pressure to bring in forfeiture proceeds to make up for declining state revenue.

1 Butler, E. (2009, January 11). HPD gets $1.4M in forfeiture revenue. Hattiesburg American, npn.

 

Missouri

 

 

Montana

 

Nebraska

Nebraska has a very high standard—beyond a reasonable doubt—to forfeit property.  However, once the state establishes that the property is subject to forfeiture, the burden shifts to the property owner to establish that he is an innocent owner.  In Nebraska, law enforcement receives 75 percent of forfeiture proceeds.

Given these limitations, Nebraska law enforcement only took in about $600,000 in total forfeitures from 2001 to 2002.  But Nebraska agencies take advantage of equitable sharing arrangements.  For example, an out-of-state driver crossing Nebraska was stopped by law enforcement, and police found a small amount of marijuana but later dropped the drug charges.  The police took a suitcase with more than $40,000 in it and turned it over to a federal agent.  The Nebraska Supreme Court found the state courts had no jurisdiction over the money after the federal agents took possession, even though the initial seizure was conducted by state agents and any eventual receipts would be equitably shared with local law enforcement.[1]

1 Obad v. State, 766 N.W.2d 89 (Neb. 2009).

 

Nevada

New Hampshire

 

New Jersey

 

New Mexico

Even after a reform effort in 2002, New Mexico’s civil forfeiture laws still do not offer adequate protections for property owners.  To secure a civil forfeiture, the government must prove, by clear and convincing evidence, that property is related to criminal activity and thus subject to forfeiture.  This is a higher standard than most states but still lower than proof beyond a reasonable required to establish criminal guilt.  Moreover, in most instances, property owners have the burden of proof for innocent owner claims.  And law enforcement may still receive 100 percent of the proceeds from any forfeiture.

 

New York

New York law provides some protection for property owners caught up in civil forfeiture, but the state’s law enforcement agencies are among the nation’s most aggressive in pursuing equitable sharing with the federal government.  Under New York civil forfeiture law, the government’s standard of proof to conduct a forfeiture depends on the property being pursued.  For real property that was used as an instrumentality of the crime, the government must prove by clear and convincing evidence that the property is related to the crime and can be forfeited.  For other property, the government only needs to show by a preponderance of the evidence that the assets were the instrumentality or proceeds of the crime.  Moreover, the property owner bears the burden in innocent owner claims.  Law enforcement may keep up to 60 percent of the proceeds seized.  The state received more than $237 million through equitable sharing between 2000 and 2008. 

Although New York “reformed” its asset forfeiture regime in 1990, it actually further encroached on the property rights of its citizens as a result of the reform.  For example, money located near controlled substances is now presumptively forfeitable—in effect, presumed guilty.  The property owner has a significant burden placed on him to overcome this presumption

 

North Carolina

 

North Dakota

 

Ohio

 

Oklahoma

 

Oregon

Oregon civil forfeiture laws have been the subject of much controversy and litigation over the past decade.  In 2000, the voters passed a strong initiative that eliminated both the profit incentive and placed a high standard of proof on the government in civil forfeiture proceedings.  Unfortunately, that initiative was put on hold while its constitutionality was challenged in court by law enforcement, where it was eventually upheld in 2006.  By that time, however, law enforcement successfully advocated for both additional changes in the legislature and also for another initiative, which narrowly passed in 2008 and curtailed several of the strong reforms passed in the 2000 initiative. 

Thankfully for property owners, the burden has remained on the government for innocent owner claims regardless of which law or amendment was in effect.  Before statutory changes were made in 2005, the government needed to show only probable cause to forfeit property in the first instance.  Today, to secure forfeiture of personal property, the government has to prove, only by a preponderance of the evidence, that the property is proceeds or an instrumentality of a crime committed by another person.  If the property is real property, the standard of proof is clear and convincing evidence.  Before 2005, law enforcement was able to keep 92 percent of proceeds for its own use.  After 2005, the formula was changed so that law enforcement now keeps 63 percent.  That formula remains in place after the 2008 initiative.

 

Pennsylvania

Pennsylvania has terrible civil forfeiture laws.  The government can civilly forfeit property by a preponderance of the evidence showing that the property is related to a crime and subject to forfeiture, a standard significantly lower than the beyond a reasonable doubt standard required for a criminal conviction.  And property owners, not the government, bear the burden of proof in innocent owner claims, making property owners effectively guilty until proven innocent.  Worse still, all of the money seized by law enforcement agencies and forfeited ultimately makes its way back into their hands.  The money is first distributed to the district attorney and state Attorney General, and, under the law, they must use it for enforcement of drug laws.  Pennsylvania law enforcement officials take advantage of the commonwealth’s broad forfeiture laws.  In just a three-year period (2000-2002), more than $20.2 million in currency, vehicles, real estate and other property was forfeited. 
           
A 1992 case illustrates the lengths to which Pennsylvania law enforcement is willing to go to seize and forfeit citizens’ property.   Mattia and Marjorie Lonardo owned Shorty’s Café in a “drug infested area” of Allentown, Pa.[1]  Aware that their café was being used for drug sales, they took significant steps to fight back.  According to the appellate court:

Mr. Lonardo made it known to his patrons that he would notify the police if he saw or suspected the possession of drugs[.] On his own initiative, Mr. Lonardo reported illegal activities to the police at least seven times, and police offers admitted at hearing that at least two raids were initiated by Mr. Londardo’s reports.  At times Mr. Lonardo called the police anonymously in fear of his life, instructed his employees to call the police whenever they saw patrons with drugs and ordered patrons to leave the bar when they were observed with drugs.  Also, he identified a suspect and cooperated with police searches at the raids, discussed drugs and loitering problems with the police captain and followed his instruction by posting signs on all the windows.  Mr. Lonardo received threats against himself and family and was injured when glass was thrown at him because he refused to acquiesce in drug activities at the cage.  He also sustained damages to the property due to this policy toward patrons dealing or possessing drugs.[2]

The police seized Mr. Lonardo’s café, and a trial court ordered it forfeited.[3]  The Lonardos were not themselves charged with any violation of the Pennsylvania Controlled Substances Act.  Nonetheless, the trial court concluded—after the testimony of 24 police officers—that the property was used in drug-related activity and the Lonardos did not “reasonably disclaim . . . [“lack of knowledge of the drug related activity”].”[4]  On appeal, the state defended the holding—arguing that property could be seized if the owner had knowledge of drug activity, even if the owner did not consent to it.[5]  Fortunately, the appellate court overturned the trial court, concluding that the Lonardos “did all that could reasonably be expected of them to prevent the illegal use of their property[.]”[6]

 1 Commonwealth of Pennsylvania v. Gordon Street, 607 A.2d 839, 840-841 (Pa. 2 Commw. Ct. 1992).
2 Id. at 846.
3 Id. at 841.
4 Ibid.
5 Id. at 843.  
6 Id. at 846

 

Rhode Island

Rhode Island civil forfeiture laws fail to protect property owners.   The government only needs to show probable cause to believe a property is related to a crime to forfeit it.  And property owners are effectively guilty until proven innocent, as the burden is on the property owner to prove he was not aware of or did not participate in the underlying crime.  Ninety percent of forfeited property makes its way to law enforcement, while only 10 percent is allocated to the Department of Health for drug abuse treatment programs.  The state is supposed to collect information on forfeiture but failed to respond to requests for information.

 

South Carolina

 

South Dakota

 

Tennessee

Tennessee has broad civil forfeiture laws that fail to protect the rights of property owners.  There, the government must establish by only a preponderance of the evidence that property is related to a crime and subject to forfeiture.  Tennessee also effectively presumes owners are guilty, as the property owner bears the burden of proof for innocent owner claims.  And, while it cannot be used to supplement salaries, local drug enforcement nonetheless keeps 100 percent of property forfeited, and there is no requirement to collect or report data on the use of forfeiture or its proceeds in Tennessee

 

Texas

Texas has broad civil forfeiture laws that offer little protection for property owners— and it uses them, as well as federal equitable sharing, aggressively.  In civil forfeiture proceedings, the state must show that property is related to a crime and subject to forfeiture by a preponderance of the evidence.  This standard is significantly lower than the beyond a reasonable doubt finding required for a criminal conviction.  And property owners bear the burden for innocent owner claims, making owners, in effect, guilty until proven innocent.  Moreover, law enforcement retains up to 90 percent of proceeds from civil forfeiture. 

Between 2001 and 2007, Texas law enforcement received more than $225 million in civil forfeiture proceeds under state law and $200 million in equitable sharing with the federal government from 2000 to 2008, although these numbers may overlap to some extent, as it is unclear whether freedom of information data includes equitable sharing revenue.

 

Utah

From 2000 to 2004, Utah law was relatively protective of property owners, but no longer.  Today, while the government must prove property is related to a crime subject to forfeiture by clear and convincing evidence, a relatively high standard, and the government bears the burden in innocent owner contests for most forfeitures, 100 percent of property seized and forfeited in connection to alleged controlled substance offenses is allocated to law enforcement through the Crime Reduction Assistance Program.

These laws are partly the product of a sustained effort by law enforcement to reverse a voter initiative protecting property rights.  In 2000, nearly 70 percent of Utah voters passed a measure that eliminated allocation of forfeited money to law enforcement.[1]  But law enforcement was determined.  Rather than obey the new law, some county prosecutors persisted in diverting some of the forfeited money into their own accounts.  Pressure from a group of citizens helped end this practice.  No longer able to use the proceeds from forfeiture, police signaled that they no longer had as much interest in the practice.  One remarked that “[d]oing forfeiture [was now] way down the line in [his] priorities.”[2]  But in 2004, the police succeeded in having the initiative overturned by the state legislature, so now 100 percent of proceeds once again go to police and prosecutors.[3] 

Despite a requirement that information on the use of forfeiture be collected, Utah officials did not respond to requests for data.

 

 


1 Institute for Justice. (n. d.). Ending prosecution for profit in Utah: Citizens demand prosecutors follow state’s civil forfeiture law. Retrieved September 25, 2009, from http://www.ij.org/index.php?option=com_content&task=view&id=1063&Itemid=165.

2 Bullock, S. (2003, October). IJ helps end Utah’s prosecution for profit. Retrieved September 25, 2009, from http://www.ij.org/index.php?option=com_content&task=view&id=1435&Itemid=194.

3 Dobner, J. (2004, March 3). Lawmakers overturn 2000 forfeiture law. Retrieved September 25, 2009, from http://www.deseretnews.com/article/595046371/Lawmakers-overturn-2000-forfeiture-law.html

 

Vermont

Vermont has one of the better civil forfeiture laws in the country.  In civil forfeiture proceedings, the state must show by clear and convincing evidence that the property is related to a crime and may be forfeited, a higher standard than most states.  Unfortunately, Vermont presumes owners are guilty, as the burden in innocent owner claims is on the owner.  But importantly, none of the property seized through civil forfeiture is allocated to law enforcement.  The money goes to the state treasury.

 

Virginia

Virginia’s civil forfeiture laws utterly fail to protect property owners.  The government must prove, only by a preponderance of the evidence, that property is related to a crime and subject to forfeiture.  In turn, property owners bear the burden of proof for innocent owner claims, effectively making them guilty until proven innocent.  Moreover, law enforcement enjoys 100 percent of the proceeds from civil forfeiture.  Initially, 90 percent of the receipts go directly to law enforcement agencies that participated in a forfeiture.  Thereafter, 10 percent goes to the Department of Criminal Justice Services to be used to promote law enforcement activities.  Virginia’s broad laws have enabled the commonwealth to receive, on average, more than $7.2 million per year in forfeiture revenue between 1996 and 2007.

 

Washington

Washington’s civil forfeiture laws do not adequately protect property owners.  Once the government seizes property, it must give notice to the owner of the seizure.  If the owner fails to respond, the property, unless it is real property, is automatically forfeited based only on the government’s allegation of probable cause to seize the property for forfeiture.  If the owner does respond and contests the forfeiture, the government then must establish that the property is related to a crime and thus subject to forfeiture by a mere showing of preponderance of the evidence, a standard lower than the beyond a reasonable doubt standard required for a criminal conviction.  And property owners in forfeiture proceedings are effectively guilty until proven innocent, bearing the burden of proof for innocent owner claims.  Ultimately, all of the money collected through civil forfeiture flows to law enforcement:  Ninety percent is retained by the seizing agency to improve drug enforcement activity while the remainder goes to a “violence reduction and drug enforcement account.”

Disturbingly, a 2001 article in the Seattle Post-Intelligencer reported that “one out of five people whose assets were seized [in one county in the state] were never charged with a crime.”  Major reform efforts in Washington have had mixed success.  The legislature did adopt one measure to shift the burden of proof to the government in innocent owner proceedings.  But in 2002, an initiative that would have placed stronger limits on forfeiture failed to garner the necessary signatures to earn consideration by the state legislature.  It would have eliminated forfeiture without a criminal conviction, as well as law enforcement’s financial incentives to engage in the practice.  Naturally, the initiative “drew heated opposition from law enforcement,” who insisted it would “choke off millions of dollars raised annually.”

 1 Skolnik, S. (2001, December 13). Critics target drug raid seizures. Seattle Post-Intelligencer, p. A1.

2 Skolnik, S. (2002, January 3). Initiative to limit police seizure power falls short. Seattle Post-Intelligencer, p. B2.

3 Ibid.

4 Ibid.

5 Ibid

 

West Virginia

West Virginia has poor civil forfeiture laws.  The government must demonstrate that property is related to a crime and subject to forfeiture by a mere preponderance of the evidence, a standard much easier for law enforcement than proving criminal guilt beyond a reasonable doubt.  And the burden is on owners for innocent owner claims, making owners effectively guilty until proven innocent.

When money is seized and forfeited, all of the proceeds go to law enforcement:  10 percent goes to the prosecuting attorney, and 90 percent goes to a law enforcement investigation fund.  Although there is no requirement in West Virginia that law enforcement officials collect information on forfeiture, a January 2009 article in the Register Herald offered some insight into the way police in Beckley, W.V., used forfeiture proceeds.  In 2008, the article reported, police brought in $65,000 and six vehicles through forfeiture.  Forfeiture revenue provided some of the funding to buy a $10,000 K-9 police dog for the department.[1] 

 

 


1 Pridemore, A. A. (2009, January 31). Drug war strategy: Hit ‘em in their wallets. Retrieved September 25, 2009, from http://www.register-herald.com/homepage/local_story_031223004.html

 

Wisconsin

Wisconsin’s civil forfeiture laws are not as bad as other states.  In civil forfeiture proceedings, the government must establish beyond a reasonable doubt that property is related to a crime.  That is the highest standard and equivalent to what is needed for a criminal conviction.  Property owners do, however, bear the burden of proof for innocent owner claims.   

The financial incentives to seek forfeiture are not as strong in Wisconsin as in other states.  Up to 50 percent of the proceeds from the sale of forfeited property goes to law enforcement.  When the forfeited property is money, the amount flowing to police depends on the amount forfeited.  If the amount forfeited does not exceed $2,000, 70 percent of the money goes to law enforcement to pay forfeiture expenses.  If more than $2,000 is forfeited, law enforcement receives 50 percent.  Perhaps to circumvent these restrictions, Wisconsin actively participates in equitable sharing agreements, receiving more than $50 million in proceeds from 2000 to 2008.

 

Wyoming

Wyoming has horrible civil forfeiture laws, with an F law grade.  The state’s final grade is pulled up to a C only by limited use of equitable sharing (an evasion grade of A) to date.  The government can seize and subsequently forfeit property with just probable cause that it is subject to forfeiture.  This is the lowest standard, far easier for the government than proving criminal guilt beyond a reasonable doubt.  A property owner who wishes to claim an innocent owner defense bears the burden of proof, effectively making owners guilty until proven innocent.  All of the proceeds from civil forfeiture are distributed to the state Attorney General’s asset fund.  In turn, those funds are used as matching funds for federal drug enforcement grants.  Finally, although officials are required to collect information on the use of forfeiture, they did not respond to requests.

 

 

1 Wyoming Division of Criminal Investigation. (2002, February 28). Drug asset seizure and forfeiture. Retrieved September 25, 2009, from http://attorneygeneral.state.wy.us/dci/text_das.html

 

 

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