What is Civil Forfeiture?

Civil forfeiture laws allow the government to take cash, cars, homes and other property suspected of being involved in criminal activity. Unlike criminal forfeiture, with civil forfeiture, the property owner doesn’t have to be charged with, let alone convicted of, a crime to permanently lose his property.

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40+

40+ STATES AND THE FEDERAL GOVERNMENT ALLOW FORFEITURE PROCEEDS TO FLOW TO LAW ENFORCEMENT COFFERS

71%

71% OF DEPARTMENT OF JUSTICE FORFEITURES NEVER GO BEFORE A JUDGE

6 months

IN HALF THE STATES, DEADLINES LEADING TO A FORFEITURE HEARING ADD UP TO MORE THAN SIX MONTHS

Your property or theirs?

Once your property has been seized by the government there is a byzantine process to get it back. See the steps and pitfalls for navigating a federal forfeiture case in this comprehensive overview.

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Frequently Asked Questions about Forfeiture

Although related, seizure and forfeiture are distinct. Seizure happens first and is the physical taking of property. If a law enforcement officer has probable cause to believe that property is associated with crime, then the officer can seize (or take physical possession of) the property. The law enforcement agency then stores the property in an evidence room or in an impound lot, before referring the case to prosecutors, who can then file criminal charges and/or pursue civil forfeiture.  

Forfeiture, on the other hand, is about whether title to property—already seized and in law enforcement’s physical possession—should be permanently transferred from the property owner to the government. 

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There are two types of owners involved in forfeiture cases:  suspects, or those alleged to have been involved in the crime, and third-parties, or those who merely own the property allegedly used in the crime. To forfeit the suspect’s property, the government must show that the property was either used by the suspect to commit or facilitate crime or that the property is or derived from proceeds of the crime.

Third parties include spouses, parents, neighbors, vehicle-leasing companies, or creditors. Once third parties have shown that they have an interest in the seized property and the government shows the property was connected to a crime, the question is whether the third-party owner knew about the illegal use of their property to commit a crime. This question of knowledge is also known as an “innocent owner” defense. (Somewhat confusingly, only third-party owners can raise an innocent-owner defense, even though the suspects themselves may never be accused of any criminal wrongdoing.) 

But unlike in criminal cases, where defendants are presumed innocent until proven guilty, in many states and on the federal level, third-party owners generally must prove that they did not know about their property being used in criminal activity, flipping the presumption of innocence straight on its head. Only 19 states and the District of Columbia always require the government to bear the burden of proof for innocent-owner claims.

Yes. There is a big difference.

Today, 15 states require a criminal conviction to permanently confiscate property with civil forfeiture—but only in limited circumstances. Though well intentioned, these reforms are not the same as criminal forfeiture. Maine, Montana and New Mexico have ended civil forfeiture outright and exclusively use criminal forfeiture. Similarly, North Carolina only permits civil forfeiture for racketeering cases..

The preferred process is criminal forfeiture, where the forfeiture is part of the criminal case. Specifically, adjudication about whether property is the proceeds or instrument of the crime follows after the defendant has been convicted, with the prosecutor bearing, in most states, the burden of proof. The suspect does not have to file their own claim for their property. (Third-party owners, on the other hand, do have to file claims in both civil and criminal forfeiture cases.)

The prosecutor may allege that the forfeiture of property is a sanction related to the underlying crime for which the suspect is charged, or is an additional and separate criminal charge, or as part of sentencing consideration. 

By contrast, states with a conviction prerequisite for civil forfeiture maintain a two-track process: The suspect is prosecuted in criminal court, while forfeiture of their or a third-party’s property is litigated in civil court. As a civil proceeding, civil forfeiture lacks many of the safeguards found in criminal cases, like the right to an attorney, requiring proof beyond a reasonable doubt, or protection against self-incrimination.

Most troubling of all, these conviction prerequisites for civil forfeiture do little to help owners in the overwhelming majority of forfeiture cases. Depending on how the statute is written, property can be forfeited, so long as someone—not necessarily the owner—is convicted of a crime related to the property.

As a result of loopholes like these, many forfeitures still happen without accompanying convictions. As reported in the fourth edition of Policing for Profit, among four states with conviction provisions and usable data on convictions, only 54% of forfeitures occur with convictions.

For instance, Philadelphia infamously tried to use civil forfeiture to take Christos and Markela Sourovelis’ home, after their son pleaded guilty to selling $40 worth of drugs. So even if Pennsylvania had had a conviction prerequisite for civil forfeiture, it still would not have prevented this attempted forfeiture unless it specifically required conviction of an owner.

Moreover, property owners (both suspects and any third-party owners) often must file a claim for their own property. If they fail to do so, their property often can be automatically forfeited (usually known as a “default” judgment), regardless of whether the owner was convicted or not.

There is little evidence that forfeiture targets criminals. Most forfeitures involve modest sums, and many occur without a criminal conviction. Moreover, research finds little connection between civil forfeiture and reduced crime. A peer-reviewed study by IJ authors found New Mexico’s reform eliminating civil forfeiture had no effect on crime or police effectiveness. Two more IJ studies, Fighting Crime or Raising Revenue? and Does Forfeiture Work?, found no evidence that forfeiture helps police solve more crime or get drugs off the streets. On the other hand, research suggests that retention of forfeiture proceeds may reduce police effectiveness.

Meanwhile, the two IJ studies that found no link between forfeiture and crime-fighting also found evidence that police use forfeiture to generate revenue: In times of fiscal stress, forfeiture activity ramps up. Similarly, other research has also found that equitable sharing increases when state laws are more restrictive.

Are you a victim of Civil Forfeiture?

Civil forfeiture laws allow the government to take cash, cars, homes and other property suspected of being involved in criminal activity.

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