States Are Finally Revoking Cops' License To Steal
A recent flurry of legislative activity suggests why forfeiture reform succeeds—and why it fails.
When cops invaded Ginnifer Hency's home in Smiths Creek, Michigan, they seized TV sets, ladders, her children's cellphones and iPads, even her vibrator. "They took everything," she told state legislators a year later. The July 2014 raid turned up six ounces of marijuana.
Hency, a mother of four with multiple sclerosis, was using marijuana for pain relief based on her neurologist's recommendation, as allowed by Michigan law at the time. She also served as a state-registered caregiver for five other medical marijuana patients. So after the cops arrested her for possessing marijuana with the intent to sell it, a St. Clair County judge dismissed the charges. But when Hency asked about getting her property back, she recalled, "The prosecutor came out to me and said, 'Well, I can still beat you in civil court. I can still take your stuff.'" When she heard that, Hency said, "I was at a loss. I literally just sat there dumbfounded."
Annette Shattuck, another medical marijuana patient who was raided by the St. Clair County Drug Task Force around the same time, told a similar story. "After they breached the door at gunpoint with masks, they proceeded to take every belonging in my house," she testified at the same hearing. The cops' haul included bicycles, her husband's tools, a lawn mower, a weed trimmer, her children's Christmas presents, $85 in cash from her daughter's birthday cards, the kids' car seats and soccer equipment, and vital documents such as driver's licenses, insurance cards, and birth certificates.
"How do you explain to your kids when they come home and everything is gone?" Shattuck asked. She added that her 9-year-old daughter was now afraid of the police and "cried for weeks" because the cops threatened to shoot the family dog during the raid. Although "my husband and I have not been convicted of any crime," Shattuck said, they could not get their property back, and their bank accounts remained frozen.
Stories like these, which highlighted the petty, cruel, money-grubbing behavior encouraged by a system that allows police to take property allegedly tainted by crime, helped inspire Michigan legislators to change the civil asset forfeiture laws that created this license to steal. In 2015, they raised the standard of proof in civil forfeiture cases involving drugs or "nuisances" such as gambling and prostitution, requiring "clear and convincing evidence" rather than "a preponderance of the evidence," the more-likely-than-not rule that had previously applied. They also required law enforcement agencies to report "all seizure and forfeiture activities" every year and indicate whether the property owners had been charged with crimes, which is not necessary for the government to take your stuff.
More reforms followed in 2017, when the state legislature eliminated a requirement that property owners post a cash bond of up to $5,000 before challenging a forfeiture, and in 2019, when it required a criminal conviction to complete forfeitures in drug cases involving property worth $50,000 or less. And Michigan legislators were not alone in imposing new restrictions on civil forfeiture, which police and prosecutors throughout the country use to supplement their budgets. Since 2014, according to a tally by the Institute for Justice (I.J.), 35 states and the District of Columbia have enacted civil forfeiture reforms, including two—New Mexico and Nebraska—that have abolished the practice.
On the face of it, this surge in forfeiture reform is puzzling. The practice of taking property by accusing it of complicity in crime, regardless of whether the owner has done anything wrong, has been a subject of national discussion since the late 1980s. The manifest injustice of that system led to modest federal reforms in 2000, then not much else. But judging from press coverage, interest in the issue has exploded in recent years: References to "civil asset forfeiture" in the Nexis news database rose to more than 11,000 during the last decade from fewer than 400 in the previous decade.
The story behind the recent wave of state reforms is the story of how politicians became newly aware of a problem that never went away and why they decided to do something about it, despite the dogged resistance of police and prosecutors keen to keep the money train rolling. The story varies from one state to another, but it generally involves a combination of outrageous injustices, corruption scandals, and rising disgust at the unseemly greed that leads cops to steal TV sets and snatch money from children's birthday cards.
'We Tried to Fix It, and It Didn't Fix'
The first Nexis reference to "civil asset forfeiture" appears in an Associated Press story from 1988, four years after a federal law expanded the use of this weapon, supposedly to cripple organized crime and deprive drug "kingpins" of their ill-gotten gains. The A.P. article described the Coast Guard's seizure of two multimillion-dollar yachts on which it found tiny amounts of marijuana. "Interdiction or Overkill?" the headline asked.
Overkill, Congress eventually decided. In 2000, after more than a decade of similar outrages, it approved the Civil Asset Forfeiture Reform Act (CAFRA). CAFRA imposed notification rules, required the government to prove a criminal nexus by a preponderance of the evidence (instead of forcing the owner to prove that his property was not subject to forfeiture), allowed owners to challenge the proportionality of forfeitures, and required the government to pay the legal costs of owners who managed to prevail in forfeiture cases. The law also expanded the "innocent owner" defense, allowing people to recover their property by proving they did not know about the criminal activity that allegedly made it subject to forfeiture or, if they knew, "did all that reasonably could be expected" to stop it.
CAFRA hardly put a stop to forfeiture abuses. In fact, it expanded the reach of federal civil forfeiture beyond drug cases to include the proceeds of any "specified unlawful activity," allowing the government's money grabbers to allege many other underlying offenses. And the law's safeguards were not as helpful as they seemed.
The innocent owner defense forced owners to prove their innocence, a complicated, time-consuming process that often costs more in legal fees than the property is worth. Unlike criminal defendants, the owners of seized assets generally do not have a right to court-appointed counsel. CAFRA did not change the profit motive created by letting law enforcement agencies keep the proceeds from the forfeitures they initiate. It did not address the fundamental problem of punishing people by taking their assets without charging them, let alone proving their guilt beyond a reasonable doubt. And it did nothing to help the victims of proliferating state forfeiture laws.
Brad Cates, who directed the Justice Department's Asset Forfeiture Office from 1985 to 1989, watched with growing horror as the monster he had helped create wreaked havoc across the country. Initially, he viewed civil forfeiture as a useful tool to confiscate the assets of big-time drug traffickers and make crime less profitable. But as the crimes that could be used to justify federal forfeitures expanded from half a dozen to hundreds; as one state after another emulated Uncle Sam; and as examples of innocent victims accumulated, Cates had a change of heart.
"We tried to fix it, and it didn't fix," he says. "They made a stab at it, and it didn't significantly change anything."
To illustrate that point, Cates cites a 2015 case in which federal drug agents boarded a train in Albuquerque and seized $16,000 in cash from Joseph Rivers, a 22-year-old aspiring video producer who was traveling from his hometown in Michigan to Los Angeles. Rivers explained that he planned to use the money—which represented years of savings combined with contributions from relatives—to produce a music video. "It just didn't seem like he ought to have it, so they took it," Cates says. "And it doesn't seem right. It doesn't seem fair to many of us."
In 2014, Cates and John Yoder, who preceded him as director of the Asset Forfeiture Office, wrote a remarkable Washington Post op-ed piece in which they declared civil forfeiture "unreformable." While it "began with good intentions," they said, it had "failed in both purpose and execution," turning the presumption of innocence "upside down," perverting law enforcement priorities, and fostering corruption. "It should be abolished," they concluded.
'It Just Made Sense to Everybody'
The following year, New Mexico took their advice. Cates, who had served eight years in the state's legislature before his stint at the Justice Department, played a key role as a lawyer for the House Judiciary Committee, where he wrote a bill that prohibited forfeiture without a criminal conviction. "It just made sense to everybody we explained it to," he says, including "liberal Democrats and conservative Republicans and everybody in between."
One reason legislators were so receptive may have been an embarrassing video of a civil forfeiture seminar for New Mexico police officers that had recently leaked. During the seminar, which was conducted in September 2014, Las Cruces City Attorney Harry S. Connelly Jr. called seized assets "little goodies" and described "a stakeout at a bar" that went awry because cops were so eager to seize and sell a fancy car that they made a crucial mistake.
"A guy drives up in a 2008 Mercedes, brand new," Connelly says in the video, which was featured in a New York Times story after the Institute for Justice shared it with the newspaper. "Just so beautiful. I mean, the cops were undercover, and they were just like, 'Ahhhh.' And he gets out, and he's just reeking of alcohol. And it's like, 'Oh, my goodness, we can hardly wait.'"
The officers watched the guy enter the bar and arrested him when he came out, but before he got back into his car. Because "he didn't have control of the vehicle," Connelly explained, the car could not be forfeited. The lesson: Cops can miss out on "little goodies" if they're not careful.
The Times story surely did not hurt Cates' bill, which the New Mexico House of Representatives unanimously approved in March 2015. It was about to get a vote in the state Senate when a police lobbyist caught wind of it. "We deliberately kept it low-key," Cates says. "We didn't make a big deal about it." On the last night of the legislative session, he says, "all the alarm bells were going off, but it was too late." The Senate also approved the bill unanimously, and then all it needed was the signature of Gov. Susana Martinez, a Republican and a former district attorney.
"She just hated it," Cates says. "She really, really, really wanted to veto it. But everybody in the state—the major newspapers and all the legislators—was saying, 'No, you got to sign it. This is a great bill.' And she didn't see the value of it, but she signed it."
'We Ran Through That Door'
When Nebraska abolished civil forfeiture a year later, the process was less stealthy. But police and prosecutors had a strong motive to support some sort of reform because of a 1999 ruling by the state Supreme Court and a 2015 decision by U.S. Attorney General Eric Holder.
In State v. Franco, the Nebraska Supreme Court had noted that the state's unusually demanding standard for civil forfeiture—proof beyond a reasonable doubt—was the same as the standard for a criminal conviction, which suggested that the legislature "intended that [forfeiture] should be criminal in nature." Given that, the court concluded, pursuing both forfeiture and a criminal prosecution in the same case would violate the constitutional ban on double jeopardy. Franco forced law enforcement agencies to choose between using state law to take someone's crime-tainted property and prosecuting him for that crime.
The Justice Department's Equitable Sharing Program, which gives police and prosecutors a cut of the money when they initiate or participate in federal forfeitures, offered a way out of that dilemma. By seeking federal "adoption" of seizures, Nebraska law enforcement agencies could avoid the double jeopardy problem by outsourcing forfeiture litigation to federal prosecutors. They could also keep up to 80 percent of the proceeds, which was even better than the 50 percent share they got from forfeitures under state law. Nebraska cops used that workaround for years, until Holder turned off the spigot in 2015 by prohibiting most kinds of forfeiture adoption.
So when the Nebraska legislature took up forfeiture reform in 2016, police and prosecutors had an incentive to make a deal. Nebraska Attorney General Doug Peterson, a Republican, was in favor of new legislation.
Working with Sen. Tommy Garrett, a self-described "conservative Republican," and Sen. Ernie Chambers, a long-serving progressive Democrat, the Institute for Justice and the American Civil Liberties Union of Nebraska seized the opportunity. Peterson "opened the door to reform, and we ran through that door," says Lee McGrath, senior legislative counsel at I.J. "We got the second-best bill [in the country] enacted."
Like New Mexico, Nebraska now requires the government to obtain a criminal conviction before it can confiscate property. The 2016 law also limits federal adoption, which was restored under the Trump administration, to cases involving assets worth $25,000 or more. But unlike New Mexico, which assigned all forfeiture proceeds to the general fund, Nebraska still gives law enforcement agencies their 50 percent cut of state forfeitures, which is mandated by the state constitution.
Peterson was not exactly thrilled with the final bill, which passed the unicameral legislature by a vote of 38–8 and was signed into law by Republican Gov. Pete Ricketts in April 2016. The attorney general's office complained that it "contains more than minor errors" and expressed skepticism that forfeiture abuse was ever really a problem in Nebraska. Peterson's chief of staff nevertheless told the Lincoln Journal Star that "over-all, it's a positive step forward."
'A Simple Reform That Has Superficial Appeal'
Compared to the reforms in New Mexico and Nebraska, the conditions and restrictions that other states have imposed on forfeiture in recent years are pretty mild, even when they look impressive on the surface. After three rounds of reform in Michigan, for instance, law enforcement agencies still receive 100 percent of forfeiture proceeds, and the criminal conviction requirement in drug cases is not as rigorous as it seems.
First, the requirement does not apply to assets worth more than $50,000. Such caps are a common feature of state forfeiture reforms, on the theory that abuses are more likely when property is not valuable enough to make a legal challenge worth the cost to the owner.
Second, a property owner in Michigan can trigger the conviction requirement only by responding to the government's forfeiture complaint in civil court, which typically requires hiring a lawyer. Answering the complaint puts the forfeiture on hold pending the outcome of the related criminal case. But the owner must act promptly. After receiving the government's complaint, he has only 20 days to file a response, and he still has no right to publicly funded legal assistance in that civil process.
Other states have similar two-track systems, which preserve the financial disadvantage that deters forfeiture challenges. "It's not that you can wait and see if you are convicted," McGrath explains. "You must expend the money to either file the civil complaint or answer the government's civil complaint."
As McGrath sees it, such halfway reforms create an impression of progress that is largely illusory. "In many states, the prosecutors come running up the steps of the capitol saying, 'Let's reform,'" he says. "They are willing to stay the civil process until after the criminal process but insist on keeping the complex and expensive two-track system. Changing the timing is a simple reform that has superficial appeal. But legislators don't ask how many seizures won't be challenged because of the complexity and the cost, which exceeds the dollar value of most seizures."
Still, the fact that so many legislators want to be seen as doing something about forfeiture abuse is striking. The timing suggests that the interest has a lot to do with the publicity campaign that the Institute for Justice launched in 2010, when it published the first edition of Policing for Profit, a report that graded state forfeiture laws and explained the abuses they encourage. At the same time, the organization was calling attention to the predicament of the innocent property owners it represented in one case after another and working with news organizations like The New York Times to highlight the avariciousness of cops obsessed with finding cash and "little goodies" to seize.
In the decade after Policing for Profit first appeared, references to "civil asset forfeiture" in the Nexis database rose 30-fold from the previous decade. Nick Sibilla, who writes about the subject regularly as a legislative analyst at I.J., says stories from influential outlets such as the Times, The Washington Post, CNN, and The New Yorker had a big impact. Between 2014 and last March, he counted "over 350 editorials from nearly 140 separate outlets" that advocated reform or abolition of civil forfeiture, while just one defended the practice. Public opinion is not as lopsided, but it's still overwhelmingly critical of civil forfeiture, which 84 percent of respondents opposed in a 2016 Cato Institute poll.
'We Need the Money'
The stories that helped turn people against civil forfeiture featured sympathetic victims like Mandrel Stuart, a Virginia restaurateur whose case was highlighted by the Post. After Stuart was pulled over because a cop thought the windows of his SUV were too dark, a drug-sniffing dog supposedly "alerted" to his front bumper. That was enough for the cops to seize $18,000 in cash that Stuart had planned to spend on restaurant equipment and supplies.
The forfeiture stories also featured villains whose greed sometimes straddled or crossed the line between legal budget padding and outright corruption. In 2013, for instance, the Atlanta Journal-Constitution revealed that Fulton County District Attorney Paul Howard's office had spent nearly $30,000 in forfeiture proceeds on booze, fancy parties, NBA and CeeLo Green tickets, and a security system for Howard's home. State officials already were investigating the D.A.'s office based on prior allegations of loose spending habits. As a participant in the Equitable Sharing Program, Howard was supposed to "avoid any appearance of extravagance, waste, or impropriety."
In 2011, former Romulus, Michigan, Police Chief Michael St. Andre and five of his former detectives were charged with "using asset forfeiture funds acquired during narcotics and prostitution investigations to buy…narcotics and prostitutes," as my Reason colleague Mike Riggs noted at the time. In one year, prosecutors said, the cops spent $40,000 in forfeiture proceeds on prostitutes, marijuana, and alcohol. St. Andre, who ultimately took a plea deal and received a prison sentence of five to 20 years, was also accused of spending $75,000 from his department's forfeiture fund to buy a tanning salon for his wife.
Another, more recent Michigan case illustrates the pitfalls of reforming forfeiture laws while leaving the profit motive untouched. In 2020, state Attorney General Dana Nessel charged Macomb County Prosecutor Eric Smith and three other defendants with a litany of felonies for misusing about $600,000 in forfeiture money. They had allegedly spent the funds on "flowers and make-up for select secretaries, a security system for Smith's residence, garden benches for staffers' homes, country club catering for parties, and campaign expenditures," among other things.
You might think such blatant abuses would discredit civil forfeiture. But they may simultaneously make the use of forfeiture funds to cover legitimate law enforcement expenses look good by comparison. Such budgetary supplementation also tends to pervert law enforcement, since it encourages police and prosecutors to prioritize financial reward over public safety. Yet many legislators welcome this found money because it relieves them of the need to appropriate additional taxpayer dollars. Arizona's recent experience with forfeiture reform illustrates that tendency.
In 2017, the Arizona legislature overwhelmingly approved a bill that increased oversight and transparency, prohibited federal adoption of forfeitures worth less than $75,000, and raised the standard of proof from a preponderance of the evidence to clear and convincing evidence. Lawmakers had heard the usual troubling stories about people who lost their property through no fault of their own. One example was Rhonda Cox, a San Tan Valley woman whose pickup truck was seized in 2013 because she lent it to her son, who was accused of equipping it with stolen accessories.
Three years later, a bill that would have gone even further to protect such innocent victims by requiring a criminal conviction prior to forfeiture passed the state Senate unanimously but foundered in the House, where Democrats unanimously opposed it. The bill's critics offered several objections, including a pandemic-shortened legislative session that ruled out amendments. But as the Tucson Sentinel reported, "some were wary of depriving prosecutorial agencies and possibly public defenders of the funding that forfeiture provides."
As far as Brad Cates is concerned, that rationale for preserving civil forfeiture is completely wrongheaded. "Need the money, need the money, need the money," he says. "That's just not a proper motive for the government to be bounty hunters. If we need more, then you appropriate more."
Cates favors a long list of forfeiture reforms. But he thinks assigning forfeiture revenue to a state's general fund rather than police and prosecutors, which eliminates their profit motive and neutralizes their budgetary argument, is the single most important way to curtail abuses.
Matt Miller, an attorney who worked on forfeiture issues at I.J. and the Phoenix-based Goldwater Institute, says the monolithic Democratic opposition to the 2020 Arizona bill was "amazing" because "it's a police reform measure." He declines to speculate about the motives of Democrats who claim to favor reform in principle. During the next legislative session, he says, "they will have every opportunity to show their support for this police reform."
In Texas, where Miller ran the Institute for Justice's state office for nine years, budgetary concerns were conspicuous when legislators considered forfeiture reform. Police and prosecutors initially said civil forfeiture was an important crime-fighting tool that nevertheless was not used very often and had not led to serious abuse in the state. But when "I.J. and others convincingly showed that it is a problem," Miller says, the argument became: "We need the money. Don't take this away from us. This is going to impact police budgets."
'The Worst Civil Forfeiture Laws in the Country'
Texas rated a D+ in the 2020 edition of Policing for Profit, quite a distance from New Mexico's A–. But Massachusetts, where you might think progressive Democrats would be sympathetic to reform, did even worse, joining North Dakota as one of just two states to earn an F. According to the report, "Massachusetts has the worst civil forfeiture laws in the country."
Police in Massachusetts can confiscate property based on nothing more than probable cause, an even lower standard than the one that Arizona and Michigan rejected as inadequate. They also get to keep up to 100 percent of the proceeds. Innocent owners can get their property back only by proving they did not know about the criminal activity that allegedly justified the forfeiture. Yet efforts to reform the system so far have gone nowhere.
Because people sympathetic to law enforcement tend to serve on legislative committees with jurisdiction over forfeiture, McGrath says, "you don't have the progressives that one thinks of in Massachusetts serving on the relevant committee where these bills are introduced." Alex Marthews, who runs the pro-reform group Restore the Fourth, says much of the blame lies with Massachusetts House Speaker Robert DeLeo, "a law-and-order Democrat" who "has generally enjoyed the support of law enforcement." Marthews notes that forfeiture reform "affects the budgets of the police, and the costs of going against the police in the legislative context are high."
Meanwhile, state legislators who might be more receptive to reform say they have not seen enough solid evidence that forfeiture abuse is a serious problem in Massachusetts. But that sort of evidence is hard to collect. "The evidentiary record for forfeiture cases is generally very slim, because the majority of cases are uncontested," Marthews says. "I can find plenty of information relating to the small number of unrepresentative cases that do get appealed, but not regarding the sort of bread-and-butter forfeitures that happen daily."
Massachusetts, like many states, does not keep careful track of what cops take from whom and in what circumstances. I.J. says reporting requirements in Massachusetts are "very poor": The data are vague, limited to drug cases, and difficult to obtain.
To get a clearer picture of what was going on just in Belmont, the small Boston suburb where Marthews lives, he had to file a public records request with the police department, which yielded a spreadsheet indicating how much income local cops had generated by participating in multi-city drug task forces. He found that forfeitures in Belmont "tend to be very small," which is consistent with research elsewhere. That helps explain why so many forfeitures go uncontested, which in turn helps explain why it is hard to say how many involve innocent owners.
Opponents of civil forfeiture—a practice that frequently targets people of modest means, drives police encounters that otherwise might not occur, and disproportionately affects African Americans—hoped those problems would be addressed by the reforms that followed George Floyd's death in Minneapolis last May. But the package that Massachusetts legislators approved in July did not touch the issue.
While "there is some appetite for change," Marthews says, "police advocates are enormously powerful in the state legislature and have been for many years." He draws some hope from the fact that ordinary people tend to oppose civil forfeiture once they understand how it works. "I explained the issue to my parents not long ago, and my parents are conservative," he says. "They were horrified that such a thing could even be legal."