Over the past several years, law enforcement officials have seized and kept more and more of people's property — without ever needing to prove that these people were involved in any crime.
Those were the findings of a new report by the Institute for Justice, which found that police have made greater use of federal "civil forfeiture" laws since 2000, with the US Department of Justice paying out law enforcement agencies more than three times as much for forfeitures in 2013 as they did in 2000:
Under civil forfeiture laws, police can take someone's property without proving the person was guilty of a crime; cops just need probable cause to believe the assets are being used as part of criminal activity, typically drug trafficking. The law then allows police to absorb the value of this property — be it cash, cars, guns, or something else — as profit, either through state programs or under a federal program known as equitable sharing that lets local and state police get up to 80 percent of the value of what they seize as money for their departments. And to get this property back, a person has to go through a lengthy, complicated, and often expensive legal process — and may not succeed at all.
The law essentially creates a financial incentive for police to take people's property — by letting police departments keep most the proceeds they produce. And the report from the Institute for Justice, which opposes civil forfeiture, shows that there are almost no protections in most states to stop police from doing just that.
The limits on civil forfeiture vary from state to state — but federal law leaves a loophole
A minority of states limit forfeiture in different ways. For example, in New Mexico and North Carolina, a court must convict the suspect of a crime before the same judge or jury can consider whether seized property can be absorbed by the state. In Minnesota and Montana, meanwhile, a suspect must be convicted of a crime in court before the seized property can be absorbed by the state through separate litigation in civil court. And in California, the state requires a conviction for forfeiture — but only for financial seizures worth up to $25,000; a boat, airplane, or vehicle; and any real estate.
These limitations don't entirely stop police from seizing someone's property — cops can still do that with probable cause alone, and hold the property as evidence for trial. But the state limits make it so police won't be able to absorb the property and its proceeds without convicting the suspect of a crime. This limits police seizures in two ways: It forces cops to show the suspect was actually involved in a crime after the property is seized, and it can deter future unfounded seizures for profit since police know they'll need to prove a crime.
But Lee McGrath, legislative counsel for the Institute for Justice, said that police in most states with restrictions on civil forfeiture can still work with federal law enforcement officials to take people's property without charging them with a crime. Only New Mexico limits local and state police departments' ability to work with the federal government in forfeiture cases — by requiring the value of seized property to be more than $50,000 before federal forfeiture can be used.
There are other limitations in some states, too. Some state laws don't let law enforcement agencies absorb proceeds from forfeitures into their own budgets, instead directing the funds to the general budget or other programs. Advocates say this helps remove the personal financial incentive police have to take and keep someone's property. But there's another loophole through the federal law: If local and state law enforcement can work with their federal counterparts, they can still conduct forfeitures, and their agencies can keep as much as 80 percent of the proceeds — regardless of what state law says.
Despite the loopholes made available through the federal law, groups like the Institute for Justice have praised states for taking steps to limit civil forfeiture — a policy that has long been mired by criticisms and horror stories of police abuse.
Police regularly abuse civil forfeiture laws
Critics have long argued that civil forfeiture allows law enforcement to essentially police for profit, since many of the proceeds from seizures can go back to police departments or prosecutors' offices. People can get their property back through court challenges, but these cases are often very expensive and take months or years.
The Washington Post's Michael Sallah, Robert O'Harrow Jr., and Steven Rich uncovered several stories in which people were pulled over while driving with cash and had their money taken despite no proof of a crime. The suspects in these cases were only able to get their property back after lengthy, costly court battles in which they showed they weren't guilty of anything.
I've also covered the story of college student Charles Clarke, who was at the airport when police took his life savings of $11,000 in 2014. Police said they smelled marijuana on Clarke's bags — but they never proved the money was linked to crime, and Clarke provided documents that showed at least some of the money came from past jobs and government benefits. The Institute for Justice, which is involved in Clarke's case, estimates that 13 different police agencies are now seeking a cut of Clarke's money.
An investigation by the Washington Post's O'Harrow and Shelly Tan found proceeds from the seized property are used by agencies for all kinds of expenditures, including guns, armored cars, surveillance gear, luxury vehicles, travel, and even a clown named Sparkles in one case.
It's stories like Clarke's that have driven some states to enact reforms. But the federal government and 45 states still fully allow civil forfeiture.
"It's ridiculous. I think it needs to change," Clarke told me in June. "I don't think the cops should be allowed to take somebody's money if they haven't committed any crime. We're treating innocent people like criminals."