Legislative Reforms

Profit Incentive

More than 40 states and the federal government allow law enforcement agencies to keep and use part or all of the civil forfeiture proceeds they take in, creating an incentive to seize and forfeit as much property as possible. But police and prosecutors should be pursuing justice, not profit. Both the state and federal governments should amend their civil forfeiture statutes to require that all civil forfeiture proceeds be deposited either into the state’s general treasury or into an account dedicated to education or compensating crime victims.

Burden of Proof

One of the most frightening aspects of civil forfeiture is that it allows police and prosecutors to take and keep people’s property without ever convicting them of—or even charging them with—a crime. And to keep their property, owners in many states have to prove a negative—namely, that the property was not connected to a crime. This harsh procedural rule causes many innocent owners to give up not because they did anything wrong, but because proving their innocence is too hard. Only 13 states require the government to bear the burden of proof for innocent-owner claims.

Equitable Sharing

Some states have enacted civil forfeiture reforms that, for instance, block law enforcement agencies from keeping forfeited property for their own use. But by using a tool called “equitable sharing,” police and prosecutors circumvent those reforms by handing over forfeiture cases to the federal government, which in turn lets police and prosecutors keep up to 80 percent of whatever it forfeits. To prevent these end runs, 7 states and the District of Columbia have passed anti-circumvention legislation to close the equitable-sharing loophole. And to ensure that the federal government respects the states’ wishes, federal law should require the government to distribute equitable sharing proceeds in the same manner as required by state law.

Today, 15 states require a criminal conviction to forfeit property, while three states have abolished the practice outright. Since 2014, 35 states and Washington, D.C. have enacted reforms. 

Legislative Highlights for Civil Forfeiture

Civil Forfeiture Reforms

Ended civil forfeiture and only use criminal forfeiture

Require criminal conviction for civil forfeiture

Require the government to always bear the burden of proof for innocent-owner claims

Closed the equitable-sharing loophole

Federal Legislatative Resources

Fifth Amendment Integrity Restoration Act of 2019

DUE PROCESS Act of 2019

Background Materials

Congressional Testimony

Darpana Sheth Senate Judiciary Committee April 15, 2015 Russ Caswell Senate Judiciary Committee April 15, 2015 Robert Everett Johnson House Ways and Means Committee Subcommittee on Oversight February 11, 2015 Jeff Hirsch House Ways and Means Committee Subcommittee on Oversight February 11, 2015 Darpana Sheth House Judiciary Committee Subcommittee on Crime, Terrorism, Homeland Security, and Investigations February 11, 2015 Robert Everett Johnson House Ways and Means Committee Subcommittee on Oversight May 24, 2016 Randy Sowers House Ways and Means Committee Subcommittee on Oversight May 24, 2016

Model Legislation

Model Criminal Forfeiture Law

Replacing Civil Forfeiture and Ending Policing for Profit

Civil forfeiture laws represent one of the most serious assaults on cars, cash and other private property by government today. In most states, prosecutors do not have to charge you, let alone convict you, for you to lose your property.

Model Forfeiture Reporting Law

Providing Data to State Legislators to Monitor Forfeiture

Civil forfeiture—where the government can take and sell your property without ever charging you with a crime, let alone convicting you of one—is one of the greatest threats to property rights in the nation. 

Model Anti-Circumvention Forfeiture Law

Protecting State Sovereignty from Federal Forfeiture Overreach

Under civil forfeiture, law enforcement agencies can permanently confiscate your cash, car, or even your home, without convicting, or even charging you with a crime. Although some states have taken action to protect innocent property owners from forfeiture abuse, a loophole in forfeiture law still puts owners at risk.