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April 13 2010

Skewed Incentives in Asset Forfeiture

Nicole Kurokawa Neily

Scott Bullock of the Institute for Justice has a terrific article in today’s Huffington Post highlighting the civil liberties and property rights violations inherent in the asset forfeiture provisions of the nation’s criminal justice system. And – big surprise – it disproportionately affects minorities and the poor.

From the article:

Under federal law and the laws of 42 states, law enforcement officials are entitled to keep most (and sometimes all) of the money and property they seize. The money goes to pay for salaries, advanced equipment and, in one Texas county, travel to Hawaii for "training." When salaries and perks are on the line, officers have a strong incentive to increase and cash in on seizures rather than seek the neutral administration of justice. 

Sounds awful, right? Bullock’s only getting started.

The numbers involved are staggering. In 2008, the Department of Justice's forfeiture fund topped $1 billion. By contrast, in 1986, the year after the profit incentive was put into the law, the fund took in $93.7 million. This money does not account for the hundreds of millions seized by state law enforcement agencies. Nor is such an accounting a simple matter, as most states fail to collect data about forfeiture proceedings in their state and the use of forfeited assets.

Forfeiture is profitable for law enforcement in part because the procedure for retrieving seized property is arduous. The government holds most of the advantages in civil forfeiture proceedings, and property owners must go to court to make their case. That's a serious barrier for people who don't have $5,000 to spend on a lawyer's retainer fee. Even if you are lucky enough to hire a lawyer, the complicated forfeiture procedures are difficult even for a lawyer to understand.

The civil forfeiture laws were supposed to help fight the war on drugs, by making sure that crime wouldn't pay. But this broken system also sweeps innocent property owners into its net, seizing money based on a premise of drug activity with no hard evidence and no requirement to prove anything to a judge. It's no surprise that asset forfeiture practices disproportionately impact low-income, hard-working African-American or Hispanic people who the police decide look suspicious and who have little means to challenge their plight.

How to solve this problem? Clearly, it’s time to end the incentives to seize property willy-nilly.  It’s not rocket science: law enforcement officers should be required to obtain convictions before taking assets. If criminals are guilty, they can keep the property; if not, innocent people won’t be unduly penalized.

I recommend reading the full IJ report, Policing for Profit, if you have time... if not, check out their short video on the subject. Also, if you’re in DC on April 28th, there’s a policy forum at the Cato Institute on this very subject (with a free lunch, even!)

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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