According to a November survey by the Cooperative Congressional Election Study, 70 percent of Americans believe "law enforcement agencies should not be allowed to keep property they take for their own use." Not surprisingly, asset forfeiture reforms aimed at implementing that principle face stiff resistance from police and prosecutors.
In Indiana, for instance, an amendment to the state constitution assigns "all forfeitures" to a fund for public schools. But as reason has reported ("The Forfeiture Racket," February 2010), police and prosecutors routinely evade that requirement by exaggerating the costs of forfeitures or by contracting them out to private attorneys. In May, Indiana Gov. Mitch Daniels vetoed a bill that would have codified the former practice, letting law enforcement agencies keep more than 90 percent of forfeiture proceeds. He called the change "unwarranted as policy and constitutionally unacceptable."
Another method of neutralizing forfeiture reform is to seize property under federal law, which generally allows police and prosecutors to keep a bigger share of the loot. A bill that has been approved by California's Assembly and is awaiting action by the state Senate would ban the practice of asking federal agencies to "adopt" a locally initiated forfeiture. In California that approach lets police and prosecutors keep up to 80 percent of the proceeds, as opposed to the 65 percent allowed by state law.
A model bill unveiled in May by the Institute for Justice and the National Association of Criminal Defense Lawyers would go further, barring law enforcement agencies from keeping the money generated by the forfeitures they initiate. Even more dramatically, the bill would abolish civil forfeiture, requiring the government to obtain a criminal conviction before taking someone's property. The bill cuts to the heart of the injustices associated with civil forfeiture laws, which allow the authorities to accuse the property, rather than its owner, of wrongdoing. Even when states officially allow innocent owners to reclaim their property, the process is often so cumbersome and expensive that they surrender to the state-sanctioned theft.