Opinion - A new study exposes the lie that civil forfeiture fights crime
Law enforcement agencies claim to fight crime when they seize and keep cash without securing a conviction. But new peer-reviewed research undercuts the narrative.
The study, published in Criminal Justice Review Nov. 3, finds that crime rates did not worsen in New Mexico when the state eliminated civil forfeiture, a law enforcement maneuver that allows the government to seize and permanently keep cash, cars and other valuables without proving wrongdoing in criminal court.
In most cases, civil forfeiture does not require proof of anything by any standard in any court. Even an arrest is optional. Agencies that see something they want during a traffic stop, airport search or other encounter can allege a criminal connection and take the property.
The burden then shifts to the owners, who must prove the innocence of their property while paying for their own defense. Many people cut their losses and walk away. Others try to represent themselves and get lost in the paperwork.
This upside-down system ensures that most civil forfeitures end administratively, meaning property owners lose without ever seeing a judge. This happens 93 percent of the time when the U.S. Department of Justice gets involved, and the rate might be similar elsewhere — most states do not keep track.
Meaningful metrics of any type are hard to find. Law enforcement agencies prefer it this way. They can say whatever they want about civil forfeiture, and they never have to back up their claims with data.
The FBI’s favorite talking point is that civil forfeiture “helps dismantle criminal organizations” and “takes away the funds they use to operate.” Agencies talk less about the profit incentive for themselves.
The total haul during the 20 years from 2000 to 2019 was at least $68.8 billion, which agencies often spend on personnel and equipment — everything from a $600 coffeemaker in Texas to a $200,000 armored personnel carrier in Georgia. One Missouri police chief called the off-budget funds “pennies from heaven” that “get you a toy.”
Many agencies try to skip this awkward conversation — at least in public.
“It’s not a popular issue,” says Missouri state Rep. Tony Lovasco (R). “As a practical matter, law enforcement groups want to do their lobbying quietly, because otherwise public opinion starts to go the opposite direction.”
Behind closed doors, law enforcement groups are more candid. This is what got New Mexico in trouble. During a 2014 civil forfeiture seminar, captured on video, officials shared tips on how to maximize profit.
The city attorney in Las Cruces, N.M., called civil forfeiture a “gold mine” that can turn prosecutors into “czars.” He told department heads from across New Mexico they could set up wish lists and go shopping — looking for items with the highest resale value.
Backlash from the seminar and litigation by our public interest law firm led to forfeiture reforms. New Mexico agencies can still seize and keep assets, but they must do it in criminal court. And they cannot take property from innocent third parties, such as family members unaware of criminal activity.
New Mexico also eliminated the profit incentive for police and prosecutors. Law enforcement agencies must now transfer all forfeiture proceeds — beyond a reasonable amount to cover expenses — to the general fund.
Police and prosecutors urged the governor to veto the 2015 legislation, saying it would “take money out” of their hands and give people “less law enforcement.” But an analysis of monthly data over a nine-year period shows no measurable harm.
The study even compared New Mexico to neighboring Colorado and Texas to control for regional trends and disruptions like the COVID-19 pandemic. No matter how the data were sliced, the results were substantively the same.
This should be good news for policymakers worried about civil forfeiture abuse, yet simultaneously concerned about hampering police. State and federal lawmakers now have empirical data — not just speculation and anecdotes — showing they can rein in civil forfeiture without compromising public safety.
“New Mexico’s 2015 reform provides a workable model for how civil forfeiture, and forfeiture’s financial incentive, can be eliminated,” the authors conclude.
Anyone can make claims. But when it comes to the effectiveness of civil forfeiture, the government needs more. Policymakers must follow the evidence.
Jennifer McDonald is assistant director of activism at the Institute for Justice in Arlington, Va., and co-author of the study, “Does Civil Forfeiture Fight Crime? Evidence From New Mexico.” Daryl James is an Institute for Justice writer.
Copyright 2024 Nexstar Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
For the latest news, weather, sports, and streaming video, head to The Hill.
