Civil Asset Forfeiture: Grading the States

Civil Asset Forfeiture:Grading the states

by

Michael Greibrok

Civil Asset Forfeiture: Grading the States / 2

Civil asset forfeiture is an obscure area of the law that allows the government to take your property without convicting, or even charging you with a crime. This sounds like something that may be used in China or Russia, but certainly not in America. Sadly, civil asset forfeiture has been used extensively at the federal and state level since the 1980s. Federal forteiture revenue has increased form under $95 million in 1986 to over $1 billion in 2008 and subsequent years.

With these stated problems, FreedomWorks recommends state-level reforms covering four specific principles:

1. An individual should actually be convicted of a crime before the government can seize any property.

2. Reforms should address due process concerns in two ways. First, the burden of proof that the property was used in connection with a crime should fall on the government. Second, the standard of proof should be beyond a reasonable doubt or clear and convincing.

3. Proceeds from seized property should be placed in neutral accounts, such as a state’s general fund, not the police budget. This would adjust the incentives driving the use of this practice.

4. Reforms should prohibit state and local law enforcement from participating in the Department of Justice’s equitable sharing program as a way of bypassing state reforms.

Thankfully, a handful of states have been leading the effort to reform civil asset forfeiture and protect private property. However, far too many states still have outdated laws that fail to protect private property.

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We graded each state on their civil asset forfeiture laws. We asked three questions to determine the grade.

• What is the standard of proof the government must meet to forfeit a person’s property?

• Who has the burden to prove innocence or mistake—the government or the property owner?

• What percentage of forfeiture funds are retained by law enforcement?

Standard Evidence What It Must DoHighest Beyond reasonable

doubtEliminate any doubts a reasonable person might have about the truth of a claim

Medium Clear & convincing Prove a claim is substantially more likely to be true than false

Low Preponderance Determine what is more likely (if evidence points to more than 50% likelihood, the burden is met)

Lowest Probable cause (prima facie)

Establish a reasonable basis (same standard used for search warrants)

Mak

ing

the

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AL: F

AK: F

AZ: D- AR: D-

CA: C+

CT: C-

Co: C DE: F

DC: B-MD: C

RI: F

NJ: D-

MA: F

VT: B

NH: DME: C+

NY: C-

PA: C-

VA: D-

NC: A-

SC: F

GA: D-MS: D

LA: D-TX: D

OK: D-

KS: D- MO: C-

OH: B

MI: D

IN: CIL: D-

WI: B

MN: B+

IA: D-NE: C+

ND: B-

SD: F

NM: A

UT: C-NV: D+

WY: F

MT: B+

TN: D-

KY: D-

FL: C

ID: D-

OR: C

WA: F

HI: D-

WV:D-

A+/A A-/B+ B/B- C+/C C-/D+ D/D- F


Grade: D-

The standard of proof is too low; the government may forfeit your property by showing a preponderance of the evidence. The property owner bears the burden to prove his innocence to get his property back. The seizing agency keeps 100% of forfeiture funds. This creates incentives for agencies to self-fund and has led the Department of Justice Assets Forfeiture Fund to increase annuals funds from $93.7 million in 1986 to over $1 billion in 2008 and subsequent years.

These standards are assuming the property owner is able to challenge the forfeiture before a federal civil court. If the property owner is before an administrative court, the property is assumed to be properly seized and the burden is on the owner to prove that the property should be returned.

Another large problem with the federal government’s civil asset forfeiture law is that the federal government can seize property in any state, and any state protections do not provide the people with protection against forfeiture by the federal government. Meaning that even if a state requires a criminal conviction before a forfeiture, the federal government can forfeit property by showing only a preponderance of the evidence.

The Department of Justice has announced new reforms that would limit equitable sharing, where federal and state or local officials work together on a seizure and share in the proceeds. These reforms were an effort to prevent states from working around state civil asset forfeiture laws that are more strict than federal laws and limit the proceeds that law enforcement is allowed to keep. Previously, local officials that were unable to keep forfei-ture proceeds under state law would ask the federal government to “adopt” the seizure and were then able to keep a full 80% of all the proceeds.

However, the reforms are filled with loopholes that could potentially un-dermine the changes. The IRS has also announced a new rule where they would stop forfeiting property suspected of being part of a structuring campaign unless the structuring was illegal. However, neither of these modifications have been codified and can be changed by the agencies at any time.The

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AlabamaThe standard of proof is extremely low; the government must only make a prima facie case to forfeit property. The property owner bears the burden to prove his innocence to get his property back, unless the forfeited prop-erty was real property, then the burden is on the government to prove the owner was not innocent. Law enforcement agencies keep 100% of forfeiture funds, and there are no collecting or reporting requirements.

AlaskaThe standard of proof is extremely low; the government must only show probable cause to forfeit property. The property owner bears the burden to prove his innocence to get his property back and only has 30 days to respond once notice is given. Law enforcement agencies keep 100% of forfeiture funds, and there are no collecting or reporting requirements.

ArizonaThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The property owner bears the burden to prove his innocence to get his property back. Law enforcement agencies keep 100% of forfeiture funds.

ArkansasThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The property owner bears the burden to prove his innocence to get his property back. Law enforcement keeps 100% of all forfeiture funds.

F

F

D-

D-


CaliforniaThe standard of proof is better than most; the government must show clear and convincing evidence to forfeit property, the standard is raised to beyond a reasonable doubt for real property. The government must prove the property owner was not an innocent owner, if the owner claims this defense. Law enforcement keeps 65% of forfeiture funds. SB 443 would fundamentally reform the state’s forfeiture law and has already passed the Senate with overwhelming support.

ColoradoThe standard of proof could be better; the government must show clear and convincing evidence to forfeit property. The government must prove the property owner was not an innocent owner, if the owner claims this defense. Law enforcement keeps 50% of forfeiture funds. Recent efforts to reform the law were shot down by the Senate Judiciary Committee.

ConnecticutThe standard of proof could be better; the government must show clear and convincing evidence to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement keeps 60% of forfeiture funds, and there are no collecting or reporting requirements.

DelawareThe standard of proof is extremely low; the government must only show probable cause to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement keeps 100% of forfeiture funds, with no collecting or reporting requirements.

C+

C

C-

F


District of ColumbiaThe standard of proof could be better; the government may forfeit money and other goods by showing a preponderance of the evidence, the owner’s cars and other real property by clear and convincing evidence, and must show the owner was convicted of a crime to seize their house. The govern-ment must prove the owner was not innocent, if that defense is claimed. All forfeiture revenues are placed in the general fund. These reforms have been approved by the city council and mayor, and await Congressional approval.

FloridaThe standard of proof could be better; the government must show clear and convincing evidence to forfeit property. The government must prove the property owner was not an innocent owner, if the owner claims this defense. Law enforcement keeps 85% of forfeiture funds. Legislation has been filed in the Senate to reform the laws.

GeorgiaThe standard of proof is extremely low; depending on the property the government must establish probable cause or show a preponderance of the evidence to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement keeps 100% of forfeiture funds, but they must be used for law enforcement activities. The legislature recently passed minor transparency reforms, which were signed into law by the governor.

HawaiiThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The burden is on the owner to prove his innocence to get his property back. Law enforcement keeps 100% of forfeiture funds.

B-

C

D-

D-


IdahoThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The burden is on the owner to prove his innocence to get his property back. Law enforcement keeps 100% of forfeiture funds.

IllinoisThe standard of proof is extremely low; the government must only show probable cause to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement keeps 90% of forfeiture funds, with no collecting or reporting requirements.

IndianaThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The burden to prove innocence depends on the property. Law enforcement receives funds to pay for the forfeiture proceedings, but all other revenues go to the general fund or education fund.

IowaThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The burden is on the owner to prove his innocence to get his property back. Law enforcement keeps 100% of forfeiture funds.

D-

D-

C

D-


KansasThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The burden is on the owner to prove his innocence to get his property back. Law enforcement keeps 100% of forfeiture funds.

KentuckyThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The burden is on the owner to prove his innocence to get his property back. Law enforcement keeps 100% of forfeiture funds.

LouisianaThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The burden is on the owner to prove his innocence to get his property back. Law enforcement keeps 80% of forfeiture funds with the remaining 20% going to the criminal court fund.

MaineThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The burden is on the owner to prove his innocence to get his property back, unless the property is real property. All forfeiture funds go to the state’s general fund.

C+

D-

D-

D-


MarylandThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The burden is on the owner to prove his innocence to get his property back, unless the property is real property. All forfeiture funds go to the state’s general fund or local govern-ing body. Reform legislation passed both chambers of the legislature but unfortunately was vetoed by the governor.

MassachusettsThe standard of proof is extremely low; the government must only show probable cause to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement re-ceives 100% of forfeiture funds, half goes to the prosecutor’s office and the other half goes to local or state police.

MichiganThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The government must prove the property owner was not an innocent owner, if the owner claims this defense. Law enforcement receives 100% of forfeiture funds. A package of eight separate reform bills has passed the Michigan House with strong bipartisan support.

MinnesotaAn individual must actually be convicted of a crime before asset forfeiture proceedings can begin. Law enforcement keeps 90% of forfeiture funds. Minnesota reformed their civil asset forfeiture laws in 2014.

C

F

D

B+


MississippiThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The government must prove the property owner was not an innocent owner, if the owner claims this defense. Law enforcement receives 80% of forfeiture funds and there are no collecting or reporting requirements.

MissouriThe standard of proof is extremely low; the government must only show reasonable cause to forfeit property. The burden is on the property owner to prove his innocence to get his property back. All forfeiture funds go to the local education fund.

MontanaThanks to new reforms passed by the Legislature and signed by the Governor, the state now requires a criminal conviction before assets can be seized. This raises the standard of proof to beyond a reasonable doubt and ensures that the government has the burden to prove the property owner’s guilt. The new law also requires notifications and greater access to hearings.

NebraskaThe standard of proof is great; the government must prove beyond a rea-sonable doubt to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement keeps 75% of forfeiture funds.

D

B+

C+

C-


NEvadaThe burden of proof could be better; the government must show clear and convincing evidence to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement receives 100% of forfeiture funds, and they must be spent within the year. Any funds over $100,000 are given to local schools at the end of the year.

New HampshireThe standard of proof is too low; the government must only show a preponderance of the evidence to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement keeps 45% of forfeiture funds, another 45% goes to the state forfeiture fund and the remaining 10% goes to the state health and human services department. House Bill 636 would reform the state’s forfeiture law.

New JerseyThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The property owner bears the burden to prove his innocence to get his property back. Law enforce-ment agencies keep 100% of forfeiture funds and there are no tracking or reporting requirements.

New MexicoThe Legislature recently passed reforms and they were signed into law by Governor Martinez. The state now requires a criminal conviction before property can be forfeited and all forfeiture funds now go directly to the state’s general fund. Additionally, state and local law enforcement are prohibited from sending seized property to the federal government for “equitable sharing,” where they would receive up to 80% of the proceeds.

D

D+

D-

A


New YorkThe standard of proof could be better; the government must show clear and convincing evidence to forfeit real property and a preponderance of the evidence for all other property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement keeps up to 60% of the forfeiture funds. In fiscal year 2014 alone, agencies in New York received more than $76 million in forfeited property form the federal government.

North CarolinaThe government can only forfeit property if the owner has been convict-ed of a crime. After a conviction, the burden is on the property owner to show why his property should not be forfeited. Law enforcement does not receive any of the forfeiture funds.

North DakotaThe standard of proof is too low, the government must show probable cause to bring a forfeiture action and establish by a preponderance of the evidence that the property was related to criminal activity to seize it. The burden is on the property owner to prove his innocence to get his property back. Co-owned real estate is protected from forfeiture if one owner has not been convicted of the underlying criminal offense. Law enforcement receives none of the forfeiture funds.

OhioThe standard of proof could be better; the government must show clear and convincing evidence to forfeit property. The burden is on the prop-erty owner to prove his innocence to get his property back. Law enforce-ment receives none of the forfeiture funds.

C

A-

B-

B


OklahomaThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The burden is on the property owner to prove his innocence to get his property back. Law enforcement keeps 100% of the forfeiture funds. Senate Bill 621 would reform the law.

OregonThe standard of proof could be better; the government must show clear and convincing evidence to forfeit real property and a preponderance of the evidence for all other property. The government must prove the prop-erty owner was not an innocent owner, if the owner claims that defense. Law enforcement keeps 63% of forfeiture funds.

PennsylvaniaThe standard of proof is too low; the government may forfeit property by showing a preponderance of the evidence. The property owner bears the burden to prove his innocence to get his property back. Forfeiture funds are first given to the district attorney and state Attorney General to enforce drug laws and then given to law enforcement. SB 869 has been introduced and would fundamentally reform the state’s forfeiture law, similarly to what was done in New Mexico.

Rhode IslandThe standard of proof is extremely low; the government must only show probable cause to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement keeps 90% of forfeiture funds and the remaining 10% goes to the Department of Health for drug abuse treatment programs.

D-

C

C-

F


South CarolinaThe standard of proof is extremely low; the government must only show probable cause to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement keeps 75% of forfeiture funds, 20% goes to prosecutors and the remaining 5% goes to the general fund. There are no collecting or reporting requirements.

South DakotaThe standard of proof is too low; the government must only show a pre-ponderance of the evidence to forfeit real property and probable cause for all other property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement keeps 100% of for-feiture funds and there are no collecting or reporting requirements.

TennesseeThe standard of proof is too low; the government must only show a prepon-derance of the evidence to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Local drug enforce-ment agencies keep 100% of forfeiture funds, although they cannot be used to supplement salaries. There are no collecting or reporting requirements.

TexasThe standard of proof is too low; the government must only show a pre-ponderance of the evidence to forfeit property. The burden is on the prop-erty owner to prove his innocence to get his property back. Law enforce-ment keeps up to 90% of forfeiture funds. House Bill 3171 is one of many bills that was introduced to reform the law.

F

F

D

D-


UtahThe standard of proof could be better; the government must show clear and convincing evidence to forfeit property. The government must prove the property owner was not an innocent owner, if the owner claims this defense. Law enforcement keeps 100% of forfeiture funds.

VermontThe standard of proof could be better; the government must show clear and convincing evidence to forfeit property. The burden is on the prop-erty owner to prove his innocence to get his property back. All forfeiture funds go to the state treasury.

VirginiaThe standard of proof is too low; the government must only show a preponderance of the evidence to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement keeps 100% of forfeiture funds. The Senate Finance Committee killed the House’s recent reform bill. There was a second chance at reform when the governor recommended instituting reforms during the veto and amendment session. However, the Senate set aside this effort so no reforms were passed

WashingtonThe standard of proof is extremely low; the government must only show probable cause to forfeit property, but if you contest the forfeiture the government must then establish by a preponderance of the evidence to forfeit your property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement keeps 100% of forfeiture funds.

C-

B

D-

F

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West VirginiaThe standard of proof is too low; the government must only show a prepon-derance of the evidence to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement keeps 100% of forfeiture funds.

WisconsinThe standard of proof is great; the government must establish proof beyond a reasonable doubt to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement receives 70% of funds if the forfeiture is for less than $2,000 and 50% if the forfeiture is for more than $2,000.

WyomingThe standard of proof is extremely low; the government must only show probable cause to forfeit property. The burden is on the property owner to prove his innocence to get his property back. All the forfeiture funds are dis-tributed to the Attorney General’s fund which is used as matching funds for federal drug enforcement grants. The Legislature passed reforms but they were vetoed by the Governor.

F

B

D-

Civil Asset Forfeiture: Grading the States

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