Asset Forfeiture and Police Priorities

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2005 16: 319Criminal Justice Policy ReviewJames C. Clingermayer, Jason Hecker and Sue Madsen

Asset Forfeiture and Police Priorities: The Impact of Program Design on Law Enforcement Activities

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10.1177/0887403404271482 CRIMINAL JUSTICE POLICY REVIEW / September 2005Clingermayer et al. / ASSET FORFEITURE AND POLICE PRIORITIES

Asset Forfeiture and Police Priorities:The Impact of Program Design onLaw Enforcement Activities

James C. ClingermayerMurray State University

Jason HeckerLiteracy Center West

Sue MadsenUnion Township Police Department

This article examines the use of asset forfeiture by law enforcement units within thegreater Cincinnati area, using the results of a survey distributed among state andlocal government law enforcement agencies. The analysis reveals what kinds of assetsare confiscated, what kind of legal authority is used to accomplish asset forfeiture,and which individuals are involved in the decisions to confiscate assets and to select aparticular kind of legal authority under which the forfeiture will be authorized. Thedata indicate that the use of asset forfeiture does not have a substantial impact on thepolicing priorities of local agencies. The sampled jurisdictions tend to use either acriminal forfeiture statute as the legal authority for the seizure or a court-imposed set-tlement to confiscate assets. By using the criminal court process, jurisdictions avoidsharing the value of the assets.

Keywords: asset forfeiture; policing

319

AUTHORS’ NOTE: Earlier versions of this article were presented at the annual meeting ofthe Public Choice Society in Nashville, Tennessee, March 2003 and at the Southeastern Con-ference on Public Administration in Columbia, South Carolina, October 2002. The listing ofthe authors’names is alphabetical. The authors would like to express appreciation to AndreaBahm and Chris Downs for help with data entry and table construction. They would also liketo thank Sergeant Michael Puckett of the Dayton (KY) police department for his assistancein the early stages of this project. Financial support for the survey was provided by the PublicService Center, Northern Kentucky University.

Criminal Justice Policy Review, Volume 16, Number 3, September 2005 319-335DOI: 10.1177/0887403404271482© 2005 Sage Publications



Law enforcement agencies in the United States have for a number of yearsmade use of a particularly powerful tool for combating criminal activities:the power to confiscate assets that are in the possession of or utilized bycriminals and/or criminal suspects. The use of this tool, henceforth referredto as asset forfeiture, became much more common during the 1980s and1990s as federal laws changed to encourage asset forfeiture by state andlocal authorities as well as by federal officers.

The widespread use of this technique became quite controversial, how-ever, because it became clear that in some instances, government confis-cated assets owned by innocent owners of property. Furthermore, in manyinstances, criminal suspects lost title to property even though they werenever convicted and sometimes never indicted for any crime connected tothe forfeited property. Because the value of the assets could be substantialand because the procedural protections for suspects and property ownersare sometimes weak, some law enforcement agencies have considerableincentive to seize assets. On occasion, assets have been seized when the per-sons owning or utilizing the assets were innocent of any crime. Some criticsof asset forfeiture have claimed that these programs distort priorities byencouraging law enforcement to focus on those crimes and those criminalsthat involve the most valuable assets, whereas other criminals and criminalactivities receive less attention, even though they may constitute a moreserious threat to public safety and order.

From the perspective of public choice scholars, these controversies andthe alleged abuse of asset forfeiture are readily explainable. Using a basicbureaucratic budget-maximization argument (e.g., that of Niskanen, 1971,1975), Bruce Benson, David Rasmussen, and David Sollars (1995) haveargued that police bureaucrats make use of asset forfeiture, particularly withrespect to drug offenses, to increase their own resources. Various otherscholars, working both inside and outside the public choice tradition, havemade comparable arguments.

This article is an attempt to shed some light on these controversies byexamining the use of asset forfeiture by law enforcement units within thegreater Cincinnati area (including jurisdictions in both Ohio and northernKentucky), using the results of a survey distributed among state and localgovernment law enforcement agencies. The analysis reveals what kinds ofassets are confiscated, what kind of legal authority is used to accomplishasset forfeiture, and which individuals are involved in the decisions to con-fiscate assets and to select a particular kind of legal authority under whichthe forfeiture will be authorized. The study also examines the circum-stances that are reported to affect the forfeiture decision.

320 CRIMINAL JUSTICE POLICY REVIEW / September 2005



This research is one of the few studies that examines decisions regardingwhich kinds of procedures are to be used in forfeiture cases. Asset forfeiturediffers significantly in procedure, depending on whether a civil process isemployed or whether the forfeiture is accomplished as a part of a criminalproceeding. Federal and state laws on civil and criminal forfeiture also dif-fer in terms of the procedures employed to carry out the forfeiture and in theway that the gains from forfeiture are divided among jurisdictions and thepurposes for which those revenues can be devoted. The impact of these pol-icy design differences on the extent of forfeiture and the kind of assets thatare forfeited are analyzed as well. The analysis also examines whether theextent of asset forfeiture affects the kind of policing priorities that lawenforcement agencies practice.

VARIETIES OF ASSET FORFEITURE POLICIES

Asset forfeiture by law enforcement has been practiced in one form oranother for a number of years, but in the United States the policy has beenencouraged by the federal government by legislation adopted in the late1970s and early 1980s. The federal legislation established a process forcivil forfeiture of assets in connection with alleged criminal activities. Thiswas in addition to the more traditional practice of criminal forfeiture. Stateor local authorities could participate and the federal government could par-ticipate in the federal civil asset forfeiture program by seizing assets andthen requesting that the forfeiture be adopted by federal authorities. Thefederal civil asset forfeiture law provided for in rem proceedings in whichthe named defendant was the asset itself, not the criminal suspect whoowned or possessed the asset. Because the proceedings involved a civil—not a criminal—process, the standard of evidence needed to gain courtapproval for a forfeiture (i.e., a preponderance of evidence) was much lowerthan in a criminal proceeding. Unanimous jury verdicts were not needed,and the right to court-appointed counsel did not exist (Hyde, 1995; Jensen& Gerber, 1996; Levy, 1996; Rainbolt & Reif, 1997). Until the passage ofthe Civil Asset Forfeiture Reform Act (CAFRA) of 2000 (Public Law 106-185), the burden of proof in a civil asset forfeiture proceeding was squarelyon the person challenging the forfeiture. Until CAFRA, indigents could notavail themselves of the services of the Legal Service Corporation to chal-lenge a forfeiture. Once a federal forfeiture was finalized, the assets couldbe equitably divided among state and local law enforcement agencies thathad contributed to the investigation leading to the seizure. Afterward, theremainder of the assets (or the remainder of the proceeds if assets were sold)

Clingermayer et al. / ASSET FORFEITURE AND POLICE PRIORITIES 321



would be sent to trust funds run either by the Department of Justice or theDepartment of Treasury, depending on which federal department had han-dled the forfeiture.

Criminal asset forfeiture is also provided for under federal law; however,the basic procedural protections available to criminal defendants applied tothose whose assets were seized. The burden of proof was clearly on theprosecution to demonstrate that a particular crime had been committed andthat the seized asset was a proceed of criminal activity, had facilitated crimi-nal activity, or was contraband in itself. The right to counsel is assured and aunanimous jury must determine guilt.

State of Ohio

The state of Ohio differs dramatically from federal practice in terms ofhow civil asset forfeiture is implemented. Under the state civil asset forfei-ture statute, assets are not forfeited unless a criminal prosecution occurs.Jurisdictions do not have to meet the heavier burden of proof to confiscatethe asset that they have to meet to gain a conviction on the criminal chargethat underlies the seizure, but they do have to establish that the asset is eithercontraband or a proceed or a facilitator of criminal activity. (Note that inOhio, proceeds and facilitators are regarded as contraband.) Assets that areforfeited through either a civil or criminal proceeding are retained by thejurisdiction if the investigation and pursuit of the suspect was carried out bya single jurisdiction. Otherwise, the proceeds from a sale of the assets aredistributed equitably among the participating jurisdictions based on the de-gree of involvement in making the case against the suspect. The forfeitedassets are not sent to a trust fund (Ohio Revised Code 2925.42; 2925.43;2933.43). Therefore, although the procedural hurdles involved in state civilasset forfeiture in Ohio are substantial, jurisdictions have a substantialincentive to seize assets because the benefits of forfeiture are capturedvirtually entirely by the seizing jurisdiction.

Commonwealth of Kentucky

In the commonwealth of Kentucky, procedural protections for criminalsuspects in civil asset forfeiture cases are not as great as in the neighboringstate to the north. Jurisdictions seizing assets need only prove by a prepon-derance of evidence that the seized assets are contraband, proceeds, or facil-itators of criminal activity (Kentucky Revised Statutes 218A.415 et seq.). Incivil forfeiture in the commonwealth, 90% of the first $50,000 of value of




seized assets (with the exception of motor vehicles) is retained by the juris-diction. The remaining 10% of the value of the assets is given to the com-monwealth attorney or county attorney who participated in the forfeitureproceeding. Fifty-five percent of the remainder goes to a state trust fundadministered by the Justice Cabinet, and 45% of the total greater than$50,000 is retained by the seizing agency. The principal of the trust fund isdistributed on a quarterly basis according to a formula set by statute. Thoseallocations are spread out among prosecutors, the Cabinet for Health Ser-vices, the Department of Corrections, and the Justice Cabinet (KentuckyRevised Statutes 218A.435). Seized motor vehicles are retained by the seiz-ing agency for official use or sold within its discretion. Hence, there is greatmotivation to use civil forfeiture when motor vehicles are at stake, but thedistribution of other assets or their values to the state trust fund diminishesthe incentive to use civil forfeiture in other cases. Assets seized in criminalforfeitures are not sent to the trust fund at all but are retained by the jurisdic-tion, yet the much stiffer procedural safeguards of a criminal proceedingwould obviously apply (Kentucky Revised Statutes 500.090).

INCENTIVES AND ASSET FORFEITURE

Many scholars have argued that the lure of valuable assets has encour-aged law enforcement to pursue certain kinds of crimes or certain kinds ofcriminals in the hope that the government could enrich itself by confiscatingassets that were paid for by the proceeds of criminal activity or that wereused to facilitate the commission of crimes. Many commentators havelinked asset forfeiture to the so-called “drug war” waged between lawenforcement and the users and sellers of controlled substances. Some havesuggested that the drug war has been a failure in terms of reducing drug useor curtailing the societal ills associated with drug use but that the war con-tinues because law enforcement finds the emphasis on drugs to be profit-able. Drug-related asset forfeitures can bring such large amounts of moneyinto the hands of police (Benson et al., 1995; Benson & Rasmussen, 1998;Blumenson & Nilsen, 1998; Mast, Benson, & Rasmussen, 2000; Worrall,2001). This kind of argument has also been made by scholars and also by asomewhat odd assortment of civil liberties advocates, property rights pro-ponents, drug legalization supporters, and libertarians. Web sites (e.g.,www.fear.org) have been created to publicize the dangers that governmentuse of asset forfeiture may have on individuals and society.

This article examines the use of asset forfeiture by law enforcement inone major metropolitan area, that of the greater Cincinnati area, which




includes southwestern Ohio and the northernmost parts of Kentucky. Theanalysis examines the use of forfeiture under both civil and criminal statutesand under both federal and state statutory authority. Because the samplesize is relatively small, multivariate analysis is difficult to apply. Simplecross-tabulations are used, and chi-square statistics are reported to identifythe impact of key variables. This analysis is aimed at learning the extent ofuse of asset forfeiture, the kinds of legal authority that are involved, the rele-vant locus of decision-making authority in forfeiture cases, and the impactthat forfeiture has on the activities and priorities of law enforcement. Thestudy also examines the factors that are reported to affect whether or notassets are confiscated in particular cases.

ANALYSIS

The analysis is based on data drawn from responses to a survey sent tostate and local government law enforcement agencies in the greaterCincinnati area during the summer of 2002. City, township, and countypolice departments, county sheriff’s departments, and state police and high-way patrol offices were surveyed in Boone, Campbell, Kenton, Grant,Pendleton, Gallatin, and Owen counties of Kentucky and Hamilton,Clermont, Union, and Brown counties of Ohio. A total of 104 different lawenforcement agencies were surveyed, with 70 completed surveys returnedfor a response rate of just more than 67%. This response rate meets orexceeds the rate of response of other survey-based research projects dealingwith asset forfeiture.

The survey made a number of inquiries about asset forfeiture and polic-ing priorities within the surveyed agencies. Responses to some but not all ofthe survey questions are discussed below.

The responses indicated that some form of asset forfeiture is very com-monly practiced in the greater Cincinnati metropolitan area. Among theOhio jurisdictions, 93.3% (42 out of 45) of the respondents indicated thatthey used asset forfeiture, whereas 96% (24 out of 25) of the Kentucky juris-dictions participated in the practice. This is not surprising given the fiscalincentive to do so and because of the explicit legal authorization and supportof state and federal governments for the program. The survey also examinedthe kinds of assets that were confiscated by the responding jurisdictions.About two thirds of the jurisdictions indicated that they seized proceedsfrom criminal activities, and just under a third of the respondents indicatedthat they seized assets that were used to facilitate crimes. Slightly more thana third indicated that they seized contraband. There were no statistically




significant differences between Ohio and Kentucky jurisdictions regardingthese seizures (see Table 1).

There were some slight differences between the states in the kinds ofitems seized. Kentucky jurisdictions were somewhat more likely than Ohiojurisdictions to seize real estate, firearms, boats, all-terrain-vehicles, andtrailers. It is not obvious from examining the Kentucky statutes why thiswas so. Possibly the state differences are attributable to the number of theseitems in the possession of criminal suspects in Kentucky (see Table 2).

State statutes in the two states do not specify which officials shall beresponsible for deciding when to seize assets or which assets to seize. Ifassets are seized simply to enrich police departments, we should expect thatlaw enforcement leaders (such as police chiefs) should be involved in thosedecisions because they would have the most advantage and motivation toincrease the volume of resources within their departments. The surveyresults, however, indicated the decision to seize an asset was not monopo-lized by a single individual. In many cases, the returned surveys indicatedthat more than one person made the seizure decisions. No particular officialin either state was identified by a majority of respondents as making thatdecision. In Kentucky, the arresting officer was said to make the seizuredecision by 32% of the respondents, whereas only 13.3% of the Ohiorespondents indicated this. In Ohio, the police chief was said to make theseizure decision in 37.8% of the surveys, somewhat more than in Kentucky.However, the difference is not statistically significant. In about a quarter ofthe cases, prosecutors make the seizure decision. This is significant,because although prosecutors do have some incentive, under equitablesharing of forfeited asset policies, to pursue forfeitures, their financialincentives are usually much less than the incentives pertinent to lawenforcement. Most of the literature criticizing asset forfeiture suggests thatpolice rather than prosecutors are pushing the hardest for this policy, partic-ularly regarding drug enforcement (see Table 3).


Table 1: Types of Seizure by Jurisdiction

Proceeds Facilitator Contraband Other

Ohio jurisdiction 62.2% 26.7% 31.1% 4.4%Kentucky jurisdiction 76.0% 44.0% 44.0% 4.0%Totals 67.1% 32.9% 35.7% 4.3%Chi-square 1.383 2.189 1.163 0.008



326

Tabl

e 2:

Kin

ds o

f A

sset

s Se

ized

by

Juri

sdic

tion

Mot

orVe

hicl

esR

eal

Est

ate

Cas

hA

ppli

ance

sF

irea

rms

Pers

onal

Valu

able

sB

oats

, AT

Vs,

Trai

lers

Con

tra-

band

Ohi

o ju

risd

ictio

n80

.0%

28.9

%84

.4%

8.9%

71.1

%24

.4%

13.3

%64

.4%

Ken

tuck

y ju

risd

ictio

n76

.0%

52.0

%96

.0%

12.0

%92

.0%

36.0

%32

.0%

72.0

%To

tal

78.6

%37

.1%

88.6

%10

.0%

78.6

%28

.6%

20.0

%67

.1%

Chi

-squ

are

0.01

53.

677*

2.12

00.

173

4.16

5**

1.05

23.

500*

0.41

6

*p<

.10.

**p

< .0

5.

Tabl

e 3:

Who

Mak

es t

he D

ecis

ion

to S

eize

Ass

ets?

Arr

esti

ngO

ffice

rH

igh-

Ran

king

Offi

cer

Poli

ceC

hief

Pro

secu

tor

Task

For

ceL

eade

rE

lect

ed C

hief

Exe

cuti

veO

ther

Pers

on

Ohi

o ju

risd

ictio

n13

.3%

17.8

%37

.8%

24.4

%4.

4%2.

2%6.

7%K

entu

cky

juri

sdic

tion

32.0

%20

.0%

28.0

%28

.0%

8.0%

0.0%

4.0%

Tota

l20

.0%

18.6

%34

.3%

25.7

%5.

7%1.

4%5.

7%C

hi-s

quar

e3.

500*

0.05

20.

682

0.10

60.

539

0.56

40.

212



Most of the critical literature about asset forfeiture has placed blame onthe use of civil proceedings to take control of the assets of suspected crimi-nals. In this survey, however, respondents indicated that the civil forfeiturelaw is not the primary legal authority that is employed by law enforcement.Only a little more than 14% of the respondents indicated that they madeextensive use of the federal civil asset forfeiture law, and only a little lessthan 16% of the jurisdictions relied primarily on their states’civil asset for-feiture law. Overall, about 37% of the respondents indicated that they pri-marily used their states’criminal asset forfeiture statute and about 30% useda court-approved plea arrangement to seize assets. Kentucky jurisdictionswere somewhat more likely to use the federal criminal statute than wereOhio respondents, but the results quite strongly indicate that seizures areaccomplished through a criminal process, not through a civil proceeding,which lacks the procedural safeguards that are taken for granted in criminalcourts (see Table 4).

The survey also inquired into the portion of the budget for the jurisdic-tion and for law enforcement that was derived from asset forfeiture. Only 1respondent indicated that forfeited assets accounted for more than 5% of thebudget for either the jurisdiction as a whole or for law enforcement.1 That isa striking finding, as some forfeiture critics have claimed that some agen-cies seek a big forfeiture that will keep their agencies funded for a couple ofyears at a time. That is not the experience reported by the respondents of thissurvey. The results did reveal some variation in the degree that the value offorfeited assets had changed over the last 5 years or so. To see whether thosechanges had affected the basic law enforcement activities and priorities ofthe respondents, cross-tabulations and correlations were calculated amongthose variables. The analysis revealed no statistically significant impactsbetween the changes in asset values and the police activities or their priori-ties. Almost half (33 out of 70) of the respondents indicated that there hadbeen no change in the value of forfeited assets. Eleven respondents indi-cated that there had been a slight increase in the value of forfeited assets,and 3 indicated that there had been a great increase. Thirteen respondentsindicated that they had witnessed a great decrease in asset values, and 6 oth-ers indicated that there had been a slight decrease. Four returned surveys didnot respond to that question. Of particular note is the absence of any statisti-cally discernible relationship between the change in asset values and thepriority placed on the enforcement of drug laws. Based on these results, it ishard to see any connection between asset forfeiture and the drug war at all(see Tables 5 and 6).




328

Tabl

e 4:

Und

er W

hich

Leg

al A

utho

rity

Are

Ass

ets

Seiz

ed?

Fede

ral

Civ

il A

sset

Forf

eitu

re L

aw

Fede

ral

Cri

min

al A

sset

Forf

eitu

re L

aw

Stat

eC

ivil

Ass

etFo

rfei

ture

Law

Stat

eC

rim

inal

Ass

etFo

rfei

ture

Law

Cou

rt-A

ppro

ved

Ple

aA

rran

gem

ent

Oth

er L

egal

Aut

hori

ty

Ohi

o ju

risd

ictio

n15

.6%

11.1

%15

.6%

33.3

%28

.9%

2.2%

Ken

tuck

y ju

risd

ictio

n12

.0%

32.0

%16

.0%

44.0

%32

.0%

4.0%

Tota

l14

.3%

18.6

%15

.7%

37.1

%30

.0%

2.9%

Chi

-squ

are

0.16

64.

637*

*0.

002

0.78

30.

074

0.18

3



329

Tabl

e 5:

Rel

atio

nshi

p B

etw

een

Cha

nge

in S

eize

d A

sset

Val

ues

and

Pol

ice

Act

ivit

ies

Stre

et P

atro

lC

omm

unit

yO

utre

ach

Scho

olan

d Yo

uth

Pro

gram

s

Inve

stig

atio

nof

Fel

ony

Offe

nses

Inve

stig

atio

nof

Mis

dem

eano

rs

Det

erre

nce

Thr

ough

Vis

ible

Pre

senc

eO

ther

Val

ue o

f fo

rfei

ted

asse

ts h

asgo

ne d

own

grea

tly69

.2%

61.5

%61

.5%

38.5

%30

.8%

46.2

%15

.4%

Val

ue o

f fo

rfei

ted

asse

ts h

asgo

ne d

own

slig

htly

33.3

%83

.3%

66.7

%33

.3%

16.7

%33

.3%

0.0%

Val

ues

of f

orfe

ited

asse

tsha

s st

ayed

abo

ut th

e sa

me

39.4

%54

.5%

42.4

%30

.3%

15.2

%57

.6%

6.1%

Val

ue o

f fo

rfei

ted

asse

ts h

asgo

ne u

p sl

ight

ly36

.4%

72.7

%72

.7%

27.3

%18

.2%

27.3

%9.

1%

Val

ue o

f fo

rfei

ted

asse

ts h

asgo

ne u

p gr

eatly

33.3

%33

.3%

33.3

%31

.3%

Tota

l42

.9%

87.1

%51

.4%

28.6

%17

.1%

47.1

%8.

6%

Chi

-squ

are

4.89

78.

652

5.67

03.

547

3.24

93.

891

4.32

4

Eta

0.26

50.

013

0.28

50.

225

0.21

50.

236

0.24

9



330

Tabl

e 6:

Rel

atio

nshi

p B

etw

een

Cha

nge

in S

eize

d A

sset

and

Pol

ice

Pri

orit

ies

Traf

ficC

ontr

olVa

ndal

ism

Bur

glar

ies

Dru

gO

ffens

esVi

ce

Whi

te-

Col

lar

Cri

me

Viol

ent

Cri

me

Oth

erO

ffens

esC

hang

e in

Pri

orit

y

Val

ue o

f fo

rfei

ted

asse

tsha

s go

ne d

own

grea

tly46

.2%

46.2

%30

.8%

23.1

%15

.4%

30.8

%15

.4%

46.2

%

Val

ue o

f fo

rfei

ted

asse

tsha

s go

ne d

own

slig

htly

50.0

%16

.7%

33.3

%50

.0%

16.7

%83

.3%

Val

ue o

f fo

rfei

ted

asse

tsha

s st

ayed

abo

ut th

e sa

me

63.6

%33

.0%

24.2

%27

.3%

9.1%

12.1

%21

.2%

21.2

%69

.7%

Val

ue o

f fo

rfei

ted

asse

tsha

s go

ne u

p sl

ight

ly72

.7%

18.2

%18

.2%

36.4

%18

.2%

18.2

%54

.5%

Val

ue o

f fo

rfei

ted

asse

tsha

s go

ne u

p gr

eatly

66.7

%33

.3%

33.3

%

Tota

l60

.0%

28.6

%24

.3%

31.4

%7.

1%5.

7%20

.0%

15.7

%61

.4%

Chi

-squ

are

2.43

56.

134

1.75

12.

415

3.36

64.

757

2.78

70.

032

4.88

7

Eta

0.18

70.

296

0.15

80.

186

0.21

90.

261

0.20

00.

215

0.26

4



The final analysis reported here pertains to the case-specific circum-stances that respondents report as important in affecting the department’suse of asset forfeiture. The survey provided respondents with a number ofdifferent factors that might affect these decisions and invited respondents tomark all the factors that were applicable. The survey also invited respon-dents to mark a response of “other” and to specify what that factor would beif a pertinent characteristic of a case was not listed on the survey. Because itwas thought that the state jurisdiction that was involved might be connectedto the factors relevant to a forfeiture decision, we cross-tabulated the state(Ohio or Kentucky) of the respondent with the choices of relevant factors.The factors that could be relevant might be affected by the nature of the posi-tion of the individuals making those decisions, so we also cross-tabulatedthe identity of the official making those decisions with the factors that wereregarded as important by the respondent. Because only 4 or fewer respon-dents indicated that forfeiture decisions were made by task force leaders,elected chief executives, or other officers, those cross-tabulations are notreported.

The results of these cross-tabulations, reported in Table 7, indicate thatseveral different factors seem to be taken into consideration in particularforfeiture decisions. However, the factors that are identified as important donot differ widely between the Kentucky and Ohio jurisdictions, nor do theyvary dramatically when different officials make the ultimate decision to for-feit assets. Overwhelmingly, respondents indicated that “the connectionbetween the asset and the commission of a crime” is a factor affecting theforfeiture decision. If this report is accurate, there should be few instanceswhen law enforcement confiscate an asset just because it is in the possessionof a criminal suspect. The second most frequently mentioned factor was the“value of the assets possessed by the suspect.” This pattern is consistentwith a “budget-maximizing bureaucrat” argument, yet it is also compatiblewith arguments that law enforcement make use of forfeitures to deter futurecrimes or to incapacitate the criminals whose assets are taken. Other kindsof factors, such as the presence of lien holders, the seriousness of the crimeinvolved, and the likely harm to innocent owners, were also mentioned bymany respondents. Very few respondents indicated that the likelihood ofconviction affected the decision to pursue a forfeiture. This could be inter-preted as indicating a lack of concern about the guilt or innocence of thosewho were having their assets taken, yet that does not appear to be a particu-larly compelling explanation in light of the fact that so many of the respon-dents in this sample made use of criminal proceedings to pursue assetforfeiture.




Of considerable note is the fact that with few exceptions, the identity ofthe official making these decisions did not seem to influence the relevantfactors in these decisions. If prosecutors, who do not work for the police de -partment and who do not receive a substantial portion of the assets, make for-feiture decisions using much of the same criteria as police officers, who dohave a substantial fiscal incentive to confiscate, the budget-maximizationargument seems weakened. By and large, that appears to be the case in thisanalysis. Respondents indicated that when prosecutors made the asset for-feiture decision, there was somewhat more of a tendency to have the possi-bility of an “undue burden on a suspect’s family” affect the forfeiture deci-sion than when a police officer made these decisions.

CONCLUSIONS AND POLICY IMPLICATIONS

Virtually all jurisdictions in the area are making use of asset forfeiture,but most agencies receive a very small part of their budgets from seizures.The extent of forfeiture does not seem to vary much, and there is little evi-dence to indicate that the use of asset forfeiture has a substantial impact onthe policing priorities of local agencies. It is also noteworthy that most juris-dictions among these respondents do not use civil forfeiture, which lacksthe procedural protections of a criminal proceeding. These jurisdictionstend to use either a criminal forfeiture statute as the legal authority for theseizure or to rely on a court-imposed settlement to confiscate assets. Byusing the criminal court process, jurisdictions avoid sharing the value of theassets unless the court orders a division among the relevant law enforce-ment and prosecutorial agencies. It is not clear that this financial advantageaccounts for the widespread use of the criminal process, or possibly lawenforcement and prosecutors simply prefer the criminal process for otherreasons. Almost half of the responding jurisdictions made use of more thanone legal procedure. In many jurisdictions, the decisions to seize assetswere made by more than one person, rather than by a single official. Argu-ably, state governments ought to regulate the process by which thesedecisions are made to avoid placing too much power over valuableforfeitures in too few hands.

There is no doubt that asset forfeiture has been abused by overly zealous,or perhaps simply mercenary, law enforcement agencies. But there appearsrelatively little evidence that this problem is pervasive among the respond-ing jurisdictions. The lack of a strong relationship between the extent ofasset forfeiture, on one hand, and police activities and priorities, on the




333

Tabl

e 7:

Cir

cum

stan

ces

Aff

ecti

ng F

orfe

itur

e D

ecis

ion

Ass

etVa

lue

Seri

ousn

ess

of C

rim

e

Lin

kB

etw

een

Ass

et a

ndC

rim

eC

onvi

ctio

nL

ikel

ihoo

d

Abs

ence

of L

ien

Hol

ders

Lik

ely

Har

m to

Inno

cent

Ow

ners

Und

ueB

urde

n on

Susp

ect’

sFa

mil

yO

ther

Fact

orR

owTo

tals

Ohi

o ju

risd

ictio

n68

.9%

53.3

%82

.2%

13.3

%60

.0%

46.7

%17

.8%

2.2%

45.0

Ken

tuck

y ju

risd

ictio

n60

.0%

44.0

%80

.0%

16.0

%48

.0%

40.0

%16

.0%

12.0

%25

.0A

rres

ting

offi

cer

deci

des

78.6

%42

.9%

78.6

%21

.4%

64.3

%35

.7%

14.3

%0.

0%14

.0H

igh-

rank

ing

offi

cer

deci

des

76.9

%53

.8%

92.3

%30

.8%

84.6

%*

53.8

%7.

7%7.

7%13

.0Po

lice

chie

f de

cide

s62

.5%

54.2

%87

.5%

29.2

%*

58.3

%58

.3%

33.3

%*

4.2%

24.0

Pros

ecut

or d

ecid

es61

.1%

66.7

%77

.8%

22.2

%55

.6%

50.0

%38

.9%

*11

.1%

18.0

Col

umn

tota

ls46

.035

.057

.010

.039

.031

.012

.04.

0

*Chi

-squ

are

sign

ific

ant a

t .05

leve

l.



other, may be attributable to the statutes in place in both states. The civilprocedures that have been so widely criticized were amended at the federallevel, and in Ohio the state civil procedure cannot be applied without a crim-inal conviction. In Kentucky, the sharing of the proceeds from asset forfei-ture diminish the incentive to pursue forfeiture. Perhaps these features ofthe statutory regimes have curbed the desire to seize assets. Other jurisdic-tions may be advised to adopt laws that would provide comparable safe-guards. Perhaps, too, law enforcement professionals have ethical normsthat discourage the abuse of this practice. In other words, there may bemuch more in the objective function of law enforcement than a desire tomaximize budgets. It should also be noted that in some jurisdictions, thedecision to carry out a forfeiture of assets is not made by law enforcementalone but involves other officials, particularly prosecutors. In any case, wedo not see evidence of any dramatic impact of forfeiture on the behavior ofthe responding jurisdictions, although obviously some care and vigilanceregarding the implementation of asset forfeiture policies is still warranted.

NOTE

1. It should be noted that although forfeited assets may contribute only a small percentageto a governmental jurisdiction, it may constitute a substantial portion of the revenue used byan interjurisdictional task force (W. B. Williams, personal communication, June 17, 2004).

REFERENCES

Benson, B., & Rasmussen, D. (1998). The context of drug policy: An economic interpreta-tion. Journal of Drug Issues, 28(3), 681-700.

Benson, B., Rasmussen, D., & Sollars, D. (1995). Police bureaucrats, their incentives, andthe war on drugs. Public Choice, 83, 21-45.

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

Hyde, H. (1995). Forfeiting our property rights. Washington, DC: Cato Institute.Jensen, E., & Gerber, J. (1996). The civil forfeiture of assets and the war on drugs: Expanding

criminal sanctions while reducing due process protection. Crime and Delinquency,42(3), 421-434.

Levy, L. (1996). A license to steal. Chapel Hill: University of North Carolina Press.Mast, B. D., Benson, B., & Rasmussen, D. (2000). Entrepreneurial police and drug enforce-

ment policy. Public Choice, 104, 285-308.Niskanen, W. (1971). Bureaucracy and representative government. Chicago: Aldine-

Atherton.




Niskanen, W. (1975). Bureaucrats and politicians. Journal of Law and Economics, 18, 617-643.

Rainbolt, G., & Reif, A. F. (1997). Crime, property, and justice: The ethics of civil forfeiture.Public Affairs Quarterly, 11(1), 39-55.

Worrall, J. L. (2001). Addicted to the drug war: The role of civil asset forfeiture as a budget-ary necessity in contemporary law enforcement. Journal of Criminal Justice, 29(3), 171-187.

James C. Clingermayer is the director of the master’s in public administration pro-gram and a faculty member in the Department of Government, Law, and InternationalAffairs at Murray State University. He has teaching and research interests dealingwith many aspects of public policy and bureaucratic politics.

Jason Hecker is the executive director of Literacy Center West in Cincinnati, Ohio,and is a recent graduate of the master’s in public administration (MPA) program ofNorthern Kentucky University (NKU). He is also now an adjunct instructor within theNKU MPA program.

Sue Madsen is a sergeant in the Union Township (Ohio) Police Department and a for-mer deputy in the Clermont County Sheriff ’s Department who also worked in theClermont County Drug Task Force. She is a graduate of the Southern Police Institute’sadministrative officers program and a 2003 graduate of the master’s in public admin-istration program at Northern Kentucky University.




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