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.
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 13 states require the government to bear the burden of proof for innocent-owner claims.
Yes. There is a big difference.
Today, 16 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, Nebraska and New Mexico have ended civil forfeiture outright and exclusively use criminal forfeiture. Similarly, North Carolina only permits civil forfeiture for racketeering cases.
A process that better protects due process and private property rights is 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.
For instance, Philadelphia infamously tried to use civil forfeiture to take Christos and Markela Sourovelis’s home, after their son pleaded guilty to selling $40 worth of drugs. So even if Pennsylvania had a conviction prerequisite for civil forfeiture, it still would not have would not have prevented this attempted forfeiture and would not prohibit some of the most egregious abuses against third-party owners.
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” judgement), regardless of whether the owner was convicted or not.
Minnesota provides a sobering example. Back in 2014, the state enacted a law that requires a criminal conviction or its equivalent to forfeit property in civil court. Yet its impact has been minimal. Drug and DUI-related cases account for nearly 90% of all of the state’s forfeitures, but in 2018, less than a fifth of drug and DUI-related forfeiture cases were challenged in court. In fact, per the linked report, between 2014 and 2018, the number of completed forfeitures had actually increased by nearly 18%.
Several states (most notably Michigan and Wisconsin) go one step further and expressly exempt unclaimed or uncontested property from their conviction requirements for civil forfeiture. Since many seizures involve small dollar amounts, well below the cost of hiring an attorney, it often does not make financial sense to hire one. That leaves a vast number of owners with little choice but to walk away without ever filing a claim and fighting back in court.
However, without proper limits, even criminal forfeiture laws can raise significant due process concerns, including the potential for excessive fines, a lack of prompt post-seizure hearings, and a financial incentive to “police for profit.”
To test whether forfeiture fights crime or instead encourages law enforcement to “police for profit,” the Institute for Justice conducted a study, Fighting Crime or Raising Revenue? that combines more than a decade’s worth of data from the nation’s largest forfeiture program, the Department of Justice’s equitable sharing program, with local crime, drug use and economic data from a variety of federal sources.
More forfeiture funds do not translate into more crimes solved or less drug use, strongly suggesting forfeiture is not the valuable crime-fighting tool proponents claim. On the contrary, when local economies suffer, forfeiture activity increases, indicating police may make greater use of forfeiture when local budgets are tight.
Notably, the study examined both civil and criminal forfeitures. If all forfeiture has little effect on crime fighting, civil forfeiture alone—which requires neither convictions nor even charges—is likely to be even further removed. And the results call into question the wisdom of financial incentives baked into both civil and criminal forfeiture laws.
End Civil Forfeiture
The Institute for Justice aims to curtail, and ultimately, abolish civil forfeiture, one of the gravest abuses of power in the country today. IJ has filed more than two dozen cases challenging civil forfeiture nationwide. In 2019, IJ secured a landmark victory at the U.S. Supreme Court when it ruled unanimously in Timbs v. Indiana that the Eight Amendment’s Excessive Fines Clause protects Americans against state and local forfeitures.