The Questions and Grades
Forfeiture laws are one of the most insidious and opaque tools used by police departments in the name of the War on Drugs. Civil asset forfeiture allows law enforcement to seize a person’s property, possessions, and money by claiming that the seized assets were either involved in a crime or the profits of a crime. In many states assets can be seized even if nobody is charged with a crime, and because the forfeiture is a civil procedure, the burden of proof can be very low.
In recent years some states have reformed their civil asset forfeiture laws, requiring more accountability on the part of law enforcement concerning how and when assets are seized and how seized money is spent. Despite claims from prosecutors and law enforcement officials that these reforms hamstring their ability to fight the War on Drugs, policy reforms mainly serve to protect people from having their money taken by police during traffic stops in a strategy that is tantamount to highway robbery.
Each state starts with an A, and its grade can be lowered based on its relevant policies. There are seven questions that are relevant to state-wide policy on cannabis legalization:
- Has the state abolished civil asset forfeiture? Only three states—Nebraska, New Mexico, and North Carolina—have abolished civil asset forfeiture, requiring that all asset forfeiture be not only tied to a criminal conviction, but seized through the criminal process. If a state has not abolished civil asset forfeiture it is docked on third of a letter grade.*
- Is a criminal conviction required for most or all forfeiture cases? Requiring a criminal conviction prevents law enforcement officials from seizing a person’s assets without charging them with a crime. If a state does not require a criminal conviction for most or all forfeiture cases, it is docked two thirds of a letter grade.
- What is the burden of proof on law enforcement? The lower the burden of proof for law enforcement to justify seizing property, the easier it is for police officers to take money and property from people simply by claiming that it was earned through or intended for drug activity. If a state requires a criminal conviction or that the burden of proof for seizure be “Beyond a Reasonable Doubt” it is not docked. If the burden of proof is “Clear and Convincing Evidence” it is docked one third of a letter grade. If the burden of proof is “Preponderance of the Evidence,” “Substantial Evidence,” or “Probable Cause,” it is docked two thirds of a letter grade.
- Does the government bear the burden of proof for innocent-owner claims? When a person challenges a seizure on the grounds that the seized asset was not involved with or obtained through a crime, it is important that the government bear the burden of proving that it was a crime. Particularly if there was no charged crime associated with the seized asset, forcing the asset’s owner to have to prove that it was not connected to a crime is an unnecessary and unfair burden. If, during the challenge of a seizure, a state places the burden of proof on the person whose asset was seized, it is docked two thirds of a letter grade.
- What percentage of the funds go to law enforcement? One of the most common criticisms of civil asset forfeiture laws is that allowing law enforcement to keep the proceeds of forfeitures creates a conflict of interest. If law enforcement directly profits from seizures they are more likely to abuse this power and to fight against necessary reforms.
- If a state allows law enforcement to keep 50% or less of the proceeds of seized assets, it is not docked.
- If it allows law enforcement to keep 51-80% of proceeds, it is docked one third of a letter grade.
- If it allows law enforcement to keep 81-90% of proceeds, it is docked two thirds of a letter grade.
- If it allows law enforcement to keep 91-100% of proceeds, it is docked one full letter grade.
- Is “Equitable Sharing” Between Police Departments and Federal Agencies Banned? Equitable sharing is a loophole that allows local police departments to circumvent state restrictions on civil asset forfeiture. Under this process, if a drug case is worked by both federal law enforcement and state or local law enforcement, the federal department will seize the assets in question and share the proceeds with the local department. If a state has not banned equitable sharing, even if it has banned civil asset forfeiture, it is docked one third of a letter grade.
- Is There a Cost Bond Requirement for Challenging a Seizure? It used to be very common for states to require that a person challenging the seizure of this property put up a bond, often equal to 10% of the value of the seized property, in order for the challenge to move forward. Most states no longer require a cost bond, but the policy still exists in Hawaii, Rhode Island, and Tennessee. If a state requires a cost bond for challenging a seizure it is docked two thirds of a letter grade.
*Under the original grading system states that had not abolished civil asset forfeiture were docked one full letter grade, but this resulted in nearly 40 states receiving an F in this category, requiring a revised grading system to capture the nuance of forfeiture laws across the country.