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Civil Asset Forfeiture

:
Grading the states
by
Michael Greibrok

Introduction

Civil asset forfeiture is an obscure area of the law that allows the
government to take your property without convicting, or even charging
you with a crime. This sounds like something that may be used in China or
Russia, but certainly not in America. Sadly, civil asset forfeiture has been
used extensively at the federal and state level since the 1980s. Federal
forteiture revenue has increased form under $95 million in 1986 to over
$1 billion in 2008 and subsequent years.
With these stated problems, FreedomWorks recommends state-level
reforms covering four specific principles:
1. An individual should actually be convicted of a crime before the
government can seize any property.
2. Reforms should address due process concerns in two ways. First, the
burden of proof that the property was used in connection with a
crime should fall on the government. Second, the standard of proof
should be beyond a reasonable doubt or clear and convincing.
3. Proceeds from seized property should be placed in neutral accounts,
such as a state’s general fund, not the police budget. This would
adjust the incentives driving the use of this practice.
4. Reforms should prohibit state and local law enforcement from
participating in the Department of Justice’s equitable sharing
program as a way of bypassing state reforms.
Thankfully, a handful of states have been leading the effort to reform civil
asset forfeiture and protect private property. However, far too many states
still have outdated laws that fail to protect private property.

Civil Asset Forfeiture: Grading the States / 2

Making the grade

We graded each state on their civil asset forfeiture laws. We asked three
questions to determine the grade.
• What is the standard of proof the government must meet to forfeit a
person’s property?
• Who has the burden to prove innocence or mistake—the government
or the property owner?
• What percentage of forfeiture funds are retained by law enforcement?
Standard
Highest

Evidence
What It Must Do
Beyond reasonable Eliminate any doubts a reasonable
doubt
person might have about the truth
of a claim
Clear & convincing Prove a claim is substantially
more likely to be true than false
Preponderance
Determine what is more likely (if
evidence points to more than 50%
likelihood, the burden is met)
Probable cause
Establish a reasonable basis (same
(prima facie)
standard used for search warrants)

Medium
Low
Lowest

VT: B

WA: F
MT: B+

ME: C+

ND: B-

OR: C

NH: D
MA: F
RI: F
CT: C-

MN: B+
ID: D-

WY: F

WI: B

SD: F
NE: C+

NV: D+
UT: CCA: C+
AZ: D-

Co: C

NM: A

NY: CMI: D
PA: C-

IA: DIL: D-

KS: DOK: D-

MO: C-

KY: D-

WV:
D- VA: DNC: A-

TN: DAR: D-

SC: F
MS: D AL: F

TX: D

NJ: DDE: F
MD: C
DC: B-

OH: B

IN: C

GA: D-

LA: DFL: C

AK: F

HI: DA+/A

A-/B+

B/B-

C+/C

C-/D+

D/D-

F

Civil Asset Forfeiture: Grading the States / 3

The Fderal Government

Grade: DThe standard of proof is too low; the government may forfeit your property
by showing a preponderance of the evidence. The property owner bears
the burden to prove his innocence to get his property back. The seizing
agency keeps 100% of forfeiture funds. This creates incentives for agencies
to self-fund and has led the Department of Justice Assets Forfeiture Fund to
increase annuals funds from $93.7 million in 1986 to over $1 billion in 2008
and subsequent years.
These standards are assuming the property owner is able to challenge the
forfeiture before a federal civil court. If the property owner is before an
administrative court, the property is assumed to be properly seized and the
burden is on the owner to prove that the property should be returned.
Another large problem with the federal government’s civil asset forfeiture
law is that the federal government can seize property in any state, and
any state protections do not provide the people with protection against
forfeiture by the federal government. Meaning that even if a state requires
a criminal conviction before a forfeiture, the federal government can forfeit
property by showing only a preponderance of the evidence.
The Department of Justice has announced new reforms that would limit
equitable sharing, where federal and state or local officials work together
on a seizure and share in the proceeds. These reforms were an effort to
prevent states from working around state civil asset forfeiture laws that are
more strict than federal laws and limit the proceeds that law enforcement is
allowed to keep. Previously, local officials that were unable to keep forfeiture proceeds under state law would ask the federal government to “adopt”
the seizure and were then able to keep a full 80% of all the proceeds.
However, the reforms are filled with loopholes that could potentially undermine the changes. The IRS has also announced a new rule where they
would stop forfeiting property suspected of being part of a structuring
campaign unless the structuring was illegal. However, neither of these
modifications have been codified and can be changed by the agencies at
any time.

Civil Asset Forfeiture: Grading the States / 4

Alabama F
The standard of proof is extremely low; the government must only make
a prima facie case to forfeit property. The property owner bears the burden
to prove his innocence to get his property back, unless the forfeited property was real property, then the burden is on the government to prove the
owner was not innocent. Law enforcement agencies keep 100% of forfeiture
funds, and there are no collecting or reporting requirements.

Alaska F
The standard of proof is extremely low; the government must only show
probable cause to forfeit property. The property owner bears the burden
to prove his innocence to get his property back and only has 30 days to
respond once notice is given. Law enforcement agencies keep 100% of
forfeiture funds, and there are no collecting or reporting requirements.

Arizona DThe standard of proof is too low; the government may forfeit property by
showing a preponderance of the evidence. The property owner bears the
burden to prove his innocence to get his property back. Law enforcement
agencies keep 100% of forfeiture funds.

Arkansas DThe standard of proof is too low; the government may forfeit property by
showing a preponderance of the evidence. The property owner bears the
burden to prove his innocence to get his property back. Law enforcement
keeps 100% of all forfeiture funds.

Civil Asset Forfeiture: Grading the States / 5

California C+
The standard of proof is better than most; the government must show
clear and convincing evidence to forfeit property, the standard is raised to
beyond a reasonable doubt for real property. The government must prove
the property owner was not an innocent owner, if the owner claims this
defense. Law enforcement keeps 65% of forfeiture funds. SB 443 would
fundamentally reform the state’s forfeiture law and has already passed the
Senate with overwhelming support.

Colorado C
The standard of proof could be better; the government must show clear
and convincing evidence to forfeit property. The government must prove
the property owner was not an innocent owner, if the owner claims this
defense. Law enforcement keeps 50% of forfeiture funds. Recent efforts
to reform the law were shot down by the Senate Judiciary Committee.

Connecticut CThe standard of proof could be better; the government must show
clear and convincing evidence to forfeit property. The burden is on the
property owner to prove his innocence to get his property back. Law
enforcement keeps 60% of forfeiture funds, and there are no collecting
or reporting requirements.

Delaware F
The standard of proof is extremely low; the government must only show
probable cause to forfeit property. The burden is on the property owner
to prove his innocence to get his property back. Law enforcement keeps
100% of forfeiture funds, with no collecting or reporting requirements.

Civil Asset Forfeiture: Grading the States / 6

District of Columbia BThe standard of proof could be better; the government may forfeit money
and other goods by showing a preponderance of the evidence, the owner’s
cars and other real property by clear and convincing evidence, and must
show the owner was convicted of a crime to seize their house. The government must prove the owner was not innocent, if that defense is claimed. All
forfeiture revenues are placed in the general fund. These reforms have been
approved by the city council and mayor, and await Congressional approval.

Florida C
The standard of proof could be better; the government must show clear
and convincing evidence to forfeit property. The government must prove
the property owner was not an innocent owner, if the owner claims this
defense. Law enforcement keeps 85% of forfeiture funds. Legislation has
been filed in the Senate to reform the laws.

Georgia DThe standard of proof is extremely low; depending on the property the
government must establish probable cause or show a preponderance of the
evidence to forfeit property. The burden is on the property owner to prove
his innocence to get his property back. Law enforcement keeps 100% of
forfeiture funds, but they must be used for law enforcement activities. The
legislature recently passed minor transparency reforms, which were signed
into law by the governor.

Hawaii DThe standard of proof is too low; the government may forfeit property by
showing a preponderance of the evidence. The burden is on the owner
to prove his innocence to get his property back. Law enforcement keeps
100% of forfeiture funds.

Civil Asset Forfeiture: Grading the States / 7

Idaho DThe standard of proof is too low; the government may forfeit property by
showing a preponderance of the evidence. The burden is on the owner to
prove his innocence to get his property back. Law enforcement keeps 100%
of forfeiture funds.

Illinois DThe standard of proof is extremely low; the government must only show
probable cause to forfeit property. The burden is on the property owner
to prove his innocence to get his property back. Law enforcement keeps
90% of forfeiture funds, with no collecting or reporting requirements.

Indiana C
The standard of proof is too low; the government may forfeit property by
showing a preponderance of the evidence. The burden to prove innocence
depends on the property. Law enforcement receives funds to pay for the
forfeiture proceedings, but all other revenues go to the general fund or
education fund.

Iowa DThe standard of proof is too low; the government may forfeit property by
showing a preponderance of the evidence. The burden is on the owner
to prove his innocence to get his property back. Law enforcement keeps
100% of forfeiture funds.

Civil Asset Forfeiture: Grading the States / 8

Kansas DThe standard of proof is too low; the government may forfeit property by
showing a preponderance of the evidence. The burden is on the owner to
prove his innocence to get his property back. Law enforcement keeps 100%
of forfeiture funds.

Kentucky DThe standard of proof is too low; the government may forfeit property by
showing a preponderance of the evidence. The burden is on the owner
to prove his innocence to get his property back. Law enforcement keeps
100% of forfeiture funds.

Louisiana DThe standard of proof is too low; the government may forfeit property by
showing a preponderance of the evidence. The burden is on the owner to
prove his innocence to get his property back. Law enforcement keeps 80%
of forfeiture funds with the remaining 20% going to the criminal court fund.

Maine C+
The standard of proof is too low; the government may forfeit property by
showing a preponderance of the evidence. The burden is on the owner to
prove his innocence to get his property back, unless the property is real
property. All forfeiture funds go to the state’s general fund.

Civil Asset Forfeiture: Grading the States / 9

Maryland C
The standard of proof is too low; the government may forfeit property by
showing a preponderance of the evidence. The burden is on the owner to
prove his innocence to get his property back, unless the property is real
property. All forfeiture funds go to the state’s general fund or local governing body. Reform legislation passed both chambers of the legislature but
unfortunately was vetoed by the governor.

Massachusetts F
The standard of proof is extremely low; the government must only show
probable cause to forfeit property. The burden is on the property owner
to prove his innocence to get his property back. Law enforcement receives 100% of forfeiture funds, half goes to the prosecutor’s office and
the other half goes to local or state police.

Michigan D
The standard of proof is too low; the government may forfeit property by
showing a preponderance of the evidence. The government must prove
the property owner was not an innocent owner, if the owner claims this
defense. Law enforcement receives 100% of forfeiture funds. A package
of eight separate reform bills has passed the Michigan House with strong
bipartisan support.

Minnesota B+
An individual must actually be convicted of a crime before asset forfeiture
proceedings can begin. Law enforcement keeps 90% of forfeiture funds.
Minnesota reformed their civil asset forfeiture laws in 2014.

Civil Asset Forfeiture: Grading the States / 10

Mississippi D
The standard of proof is too low; the government may forfeit property by
showing a preponderance of the evidence. The government must prove
the property owner was not an innocent owner, if the owner claims this
defense. Law enforcement receives 80% of forfeiture funds and there are
no collecting or reporting requirements.

Missouri CThe standard of proof is extremely low; the government must only show
reasonable cause to forfeit property. The burden is on the property owner
to prove his innocence to get his property back. All forfeiture funds go to
the local education fund.

Montana B+
Thanks to new reforms passed by the Legislature and signed by the
Governor, the state now requires a criminal conviction before assets
can be seized. This raises the standard of proof to beyond a reasonable
doubt and ensures that the government has the burden to prove the
property owner’s guilt. The new law also requires notifications and
greater access to hearings.

Nebraska C+
The standard of proof is great; the government must prove beyond a reasonable doubt to forfeit property. The burden is on the property owner
to prove his innocence to get his property back. Law enforcement keeps
75% of forfeiture funds.

Civil Asset Forfeiture: Grading the States / 11

NEvada D+
The burden of proof could be better; the government must show clear
and convincing evidence to forfeit property. The burden is on the property
owner to prove his innocence to get his property back. Law enforcement
receives 100% of forfeiture funds, and they must be spent within the year.
Any funds over $100,000 are given to local schools at the end of the year.

New Hampshire D
The standard of proof is too low; the government must only show a
preponderance of the evidence to forfeit property. The burden is on the
property owner to prove his innocence to get his property back. Law
enforcement keeps 45% of forfeiture funds, another 45% goes to the
state forfeiture fund and the remaining 10% goes to the state health and
human services department. House Bill 636 would reform the state’s
forfeiture law.

New Jersey DThe standard of proof is too low; the government may forfeit property
by showing a preponderance of the evidence. The property owner bears
the burden to prove his innocence to get his property back. Law enforcement agencies keep 100% of forfeiture funds and there are no tracking or
reporting requirements.

New Mexico A
The Legislature recently passed reforms and they were signed into law by
Governor Martinez. The state now requires a criminal conviction before
property can be forfeited and all forfeiture funds now go directly to the
state’s general fund. Additionally, state and local law enforcement are
prohibited from sending seized property to the federal government for
“equitable sharing,” where they would receive up to 80% of the proceeds.

Civil Asset Forfeiture: Grading the States / 12

New York C
The standard of proof could be better; the government must show clear
and convincing evidence to forfeit real property and a preponderance of
the evidence for all other property. The burden is on the property owner
to prove his innocence to get his property back. Law enforcement keeps
up to 60% of the forfeiture funds. In fiscal year 2014 alone, agencies in
New York received more than $76 million in forfeited property form the
federal government.

North Carolina AThe government can only forfeit property if the owner has been convicted of a crime. After a conviction, the burden is on the property owner to
show why his property should not be forfeited. Law enforcement does
not receive any of the forfeiture funds.

North Dakota BThe standard of proof is too low, the government must show probable
cause to bring a forfeiture action and establish by a preponderance of the
evidence that the property was related to criminal activity to seize it. The
burden is on the property owner to prove his innocence to get his property
back. Co-owned real estate is protected from forfeiture if one owner has
not been convicted of the underlying criminal offense. Law enforcement
receives none of the forfeiture funds.

Ohio B
The standard of proof could be better; the government must show clear
and convincing evidence to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement receives none of the forfeiture funds.

Civil Asset Forfeiture: Grading the States / 13

Oklahoma DThe standard of proof is too low; the government may forfeit property by
showing a preponderance of the evidence. The burden is on the property
owner to prove his innocence to get his property back. Law enforcement
keeps 100% of the forfeiture funds. Senate Bill 621 would reform the law.

Oregon C
The standard of proof could be better; the government must show clear
and convincing evidence to forfeit real property and a preponderance of
the evidence for all other property. The government must prove the property owner was not an innocent owner, if the owner claims that defense.
Law enforcement keeps 63% of forfeiture funds.

Pennsylvania CThe standard of proof is too low; the government may forfeit property by
showing a preponderance of the evidence. The property owner bears the
burden to prove his innocence to get his property back. Forfeiture funds
are first given to the district attorney and state Attorney General to enforce
drug laws and then given to law enforcement. SB 869 has been introduced
and would fundamentally reform the state’s forfeiture law, similarly to what
was done in New Mexico.

Rhode Island F
The standard of proof is extremely low; the government must only show
probable cause to forfeit property. The burden is on the property owner
to prove his innocence to get his property back. Law enforcement keeps
90% of forfeiture funds and the remaining 10% goes to the Department of
Health for drug abuse treatment programs.

Civil Asset Forfeiture: Grading the States / 14

South Carolina F
The standard of proof is extremely low; the government must only show
probable cause to forfeit property. The burden is on the property owner to
prove his innocence to get his property back. Law enforcement keeps 75%
of forfeiture funds, 20% goes to prosecutors and the remaining 5% goes to
the general fund. There are no collecting or reporting requirements.

South Dakota F
The standard of proof is too low; the government must only show a preponderance of the evidence to forfeit real property and probable cause
for all other property. The burden is on the property owner to prove his
innocence to get his property back. Law enforcement keeps 100% of forfeiture funds and there are no collecting or reporting requirements.

Tennessee DThe standard of proof is too low; the government must only show a preponderance of the evidence to forfeit property. The burden is on the property
owner to prove his innocence to get his property back. Local drug enforcement agencies keep 100% of forfeiture funds, although they cannot be used
to supplement salaries. There are no collecting or reporting requirements.

Texas D
The standard of proof is too low; the government must only show a preponderance of the evidence to forfeit property. The burden is on the property owner to prove his innocence to get his property back. Law enforcement keeps up to 90% of forfeiture funds. House Bill 3171 is one of many
bills that was introduced to reform the law.

Civil Asset Forfeiture: Grading the States / 15

Utah CThe standard of proof could be better; the government must show clear
and convincing evidence to forfeit property. The government must prove
the property owner was not an innocent owner, if the owner claims this
defense. Law enforcement keeps 100% of forfeiture funds.

Vermont B
The standard of proof could be better; the government must show clear
and convincing evidence to forfeit property. The burden is on the property owner to prove his innocence to get his property back. All forfeiture
funds go to the state treasury.

Virginia DThe standard of proof is too low; the government must only show a
preponderance of the evidence to forfeit property. The burden is on
the property owner to prove his innocence to get his property back.
Law enforcement keeps 100% of forfeiture funds. The Senate Finance
Committee killed the House’s recent reform bill. There was a second
chance at reform when the governor recommended instituting reforms
during the veto and amendment session. However, the Senate set aside
this effort so no reforms were passed

Washington F
The standard of proof is extremely low; the government must only
show probable cause to forfeit property, but if you contest the forfeiture
the government must then establish by a preponderance of the evidence
to forfeit your property. The burden is on the property owner to prove
his innocence to get his property back. Law enforcement keeps 100%
of forfeiture funds.

Civil Asset Forfeiture: Grading the States / 16

West Virginia DThe standard of proof is too low; the government must only show a preponderance of the evidence to forfeit property. The burden is on the property
owner to prove his innocence to get his property back. Law enforcement
keeps 100% of forfeiture funds.

Wisconsin B
The standard of proof is great; the government must establish proof
beyond a reasonable doubt to forfeit property. The burden is on the
property owner to prove his innocence to get his property back. Law
enforcement receives 70% of funds if the forfeiture is for less than
$2,000 and 50% if the forfeiture is for more than $2,000.

Wyoming F
The standard of proof is extremely low; the government must only show
probable cause to forfeit property. The burden is on the property owner to
prove his innocence to get his property back. All the forfeiture funds are distributed to the Attorney General’s fund which is used as matching funds for
federal drug enforcement grants. The Legislature passed reforms but they
were vetoed by the Governor.

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