Police around the country routinely seize property, even from people who have never been charged with a crime. Called civil forfeiture, 43 states allow law enforcement to keep anywhere from 45 to 100% of the proceeds from a “forfeited” property. And even in states where agencies are barred from profiting from forfeiture, police are refusing to abide by state law.
For far too long, civil forfeiture, meant to allow police to seize property with suspected connections to a crime, has enabled police to put profits over public service.
One of the starkest examples of how civil forfeiture can transform law enforcers into law breakers is in Indiana, where the Institute for Justice, where I work, filed a lawsuit on Wednesday on behalf of six Indiana residents. Two of the plaintiffs, Jack and Jeana Horner, had their two trucks seized by Marion County even though they were never charged with a crime. The Horners spent nine months trying to recover their vehicles.
Regardless of the Horners’ innocence, the police should not have been allowed to keep the loot, because since 1851, the Indiana constitution has stated that “all forfeitures which may accrue” must be deposited into a fund for public schools. But the Indiana general assembly crafted a dangerous loophole in 1984 saying that agencies could deduct any and all “law enforcement costs” from forfeiture proceeds and only send the surplus to the public-school fund.
Instead of deducting genuine expenses, case by case, law enforcement agencies split proceeds on a predetermined basis. Take Marion County, the state’s largest. Records show that the Marion County prosecutor’s office and the Indianapolis metropolitan police department have created a “memorandum of understanding”: Police retain 70% of forfeiture proceeds, while prosecutors keep the remaining 30%. Public schools get nothing.
The arrangement is certainly lucrative. Between 2003 and 2010, Marion County law enforcement received, on average, $888,112 each year in forfeiture proceeds. Over the next two years, that number nearly doubled to more than $1.5m each year on average. Over the past five years, prosecutors in Marion County alone have brought over 2,700 civil forfeiture cases.
The Institute for Justice’s argument against Marion County and Indianapolis is quite simple. “All forfeitures” does not mean “some forfeitures”. As such, the 1984 law – and any arrangements that follow – run afoul of the state constitution. A ruling against Marion County would force law enforcement to actually obey the law, and get rid of the incentive to keep possessions of people without a conviction, while ensuring that any forfeiture funds would finance public schools.
Indiana police are not alone in thinking that they are above the law. In November, the Institute for Justice filed a lawsuit to compel Albuquerque police to follow a new Forfeiture Reform Law. Last year, New Mexico abolished civil forfeiture entirely, partly in response to outrageous comments made by government officials. As part of the reform package, the government must secure a criminal conviction before forfeiture can occur, while all proceeds must be sent to the general fund, not police coffers.
But police are arguing that the law does not apply to the city’s municipal civil seizure program. Since 2010, Albuquerque’s seizure ordinance has brought in $8.3m for the city, while police have seized over 8,300 vehicles. Police are so confident they can continue to take property without convictions they are even looking to buy a new complex to store seized cars.
Two state senators, who championed the reform’s passage and are plaintiffs in the case, vigorously contest that claim, pointing to language in the law that states, “only criminal forfeiture is allowed in this state”.
What police in Albuquerque and Indianapolis are doing is clearly unconscionable. Yet even their profiteering pales in comparison to a federal forfeiture program called “equitable sharing”. Through this loophole, local and state law enforcement agencies can partner with a federal agency, move to forfeit property under federal law, and then receive up to 80% of the proceeds. Police and prosecutors can participate in equitable sharing even if doing so would circumvent tougher restrictions imposed by state law.
From 2000 to 2013, the US Department of Justice paid out more than $4.7bn in equitable sharing funds, distributing nearly $500m in payments just last year. An investigation into equitable sharing by the Washington Post found nearly 62,000 cash seizures “since 9/11 without search warrants or indictments”.
Fortunately, in response to budget cuts, the Justice Department temporarily suspended the program in December. But according to one DoJ official, “The Department remains committed to the Program”. Absent action by Congress, equitable sharing could be revived, threatening Americans’ civil liberties and property rights.
Courts, lawmakers and citizens alike must demand that law enforcement respect the laws they are sworn to uphold instead of profiting off loopholes and ambiguities.