How civil forfeiture targets everyday Americans, not kingpins

Civil asset forfeiture is a legal process that allows law enforcement to permanently seize property suspected of being connected to criminal activity, often without requiring the property owner to be convicted or even charged with a crime. Civil asset forfeiture, once used to combat piracy, was revived in the 1980s as a War on Drugs tactic to target the financial networks of drug traffickers. Over time, however, this tool has morphed into a powerful and frequently abused mechanism for generating revenue, often ensnaring innocent individuals. Today, civil asset forfeiture stands as a stark example of how the intersection of criminal justice and financial incentives can erode civil liberties, undermine the rule of law, and distract from legitimate public safety priorities. 

Erosion of due process and property rights

Civil asset forfeiture is classified as a legal proceeding against the property, rather than the individual who owns it. This can include cash, cars, homes, bank accounts, jewelry, cell phones, laptops, firearms, and even everyday items like clothing or gift cards. Because these proceedings are classified as civil, rather than criminal, Americans facing civil asset forfeiture don’t receive the same level of due process. The federal government and most states require a lower burden of proof than “beyond a reasonable doubt” to win civil forfeiture cases, often using standards such as “preponderance of the evidence” or even “probable cause,” which makes it significantly easier for the government to seize property without a criminal conviction. 

Additionally, while there is a process for innocent owners to reclaim their property, the burden of proof often lies with the property owner to demonstrate their innocence and that they were not aware of any criminal activity. This flips Americans’ constitutional right to the presumption of innocence on its head.  

In Culley v. Marshall, an asset forfeiture case that was fought all the way to the Supreme Court, two Alabama residents’ cars were used by others to conduct illegal drug transactions. The owners were unaware these crimes were happening, but Alabama police attempted to seize the vehicles anyway. It took the owners many months to prove their innocence through state courts and reclaim their vehicles. During that time, they were left without transportation—affecting their ability to work, care for their families, and meet daily needs—and received no compensation for the loss of use. Although the Supreme Court ultimately ruled in Culley v. Marshall that no constitutional violation occurred, the case exposed a deeper issue: property owners can be left without critical assets for months, without a prompt hearing or any practical way to challenge the seizure. While the owners eventually reclaimed their vehicles through the courts, the drawn-out process—during which they had no access to essential property—reveals how current civil forfeiture procedures can be burdensome and one-sided. Even in cases where the property owner is innocent, navigating the system requires time, money, and legal knowledge that many people simply don’t have. Culley illustrates how the system can penalize people not just for actual guilt, but for proximity to those who are guilty.

In South Carolina, Mikee Albin’s RV, where he lived, was seized after officers purchased a small amount of marijuana in the restaurant Albin owned. A state appeals court eventually ruled the seizure invalid, though Albin had since died, but Albin’s estate never recovered the money spent fighting the case. In Wyoming, Phil Parhamovich was pulled over for improper seat belt use and a lane violation. After consenting to a vehicle search, police discovered $91,800 of his life savings hidden in a speaker—money he planned to use as a down payment for a recording studio. He wasn’t charged with a drug crime or any other serious offense. Nonetheless, police claimed the money was connected to drug activity and seized the cash, and Parhamovich had to fight through a lengthy legal process to get it back eventually. 

Unfortunately, these cases are surprisingly common. In 2018 alone, local and federal law enforcement seized over $3 billion in cash and property, with $2.5 billion coming through federal programs. Importantly, most of that federal forfeiture—nearly $2.1 billion—was conducted without any criminal charges. Over the past two decades, forfeiture has pulled in more than $68 billion nationwide, turning a system meant to fight crime into one that quietly strips people of their property, often without ever giving them a day in court.

Financial incentives encourage troubling law enforcement behavior

In 43 states, police departments and prosecutors’ offices are allowed to keep anywhere from 50% to 100% of the revenue generated through civil asset forfeiture. This creates a strong incentive to prioritize policing that also makes money, particularly in drug enforcement. Some states have seen public backlash against such practices, as abuses have drawn media attention and have led to reform. Such reforms include increasing the burden of proof, limiting what can be seized, or requiring that forfeiture proceeds go to general funds or community programs instead of law enforcement budgets.

However, local agencies can often sidestep these state-level reforms by participating in the federal government’s Equitable Sharing Program, which is run by the U.S. Department of Justice and the Department of the Treasury. Under this program, local police can partner with federal agencies, such as the Drug Enforcement Administration, on forfeiture cases. When property is seized, even if it would usually be governed by state law, the case is instead processed under more permissive federal forfeiture rules. Once the property is forfeited, up to 80% of the proceeds are “shared” back with the local agency, regardless of what state law might otherwise require.

This loophole allows departments to bypass stricter state forfeiture laws and continue seizing property under federal standards, which often require a lower burden of proof and impose fewer restrictions on how the money can be used. Because the federal government handles the legal action, state restrictions on how forfeited assets are distributed don’t apply; yet the local agency still receives a share of the proceeds.

While these seizures may generate revenue for police and prosecutors in the short term, the broader consequence is a distortion of policing priorities, where financial gain outweighs public safety. Rather than focusing on solving violent crimes or engaging in proactive, community-based policing, agencies are encouraged to dedicate time and resources to revenue-generating activities like roadside drug stops and property seizures. 

This misalignment comes at a cost: While officers are pulling over cars on the interstate in search of cash, clearance rates for serious crimes, like homicide, assault, and burglary, remain alarmingly low in many jurisdictions. Nationwide, police solve only about half of all homicides, and the clearance rates for property crimes are even lower. By prioritizing profit-driven drug enforcement, departments risk neglecting the very duties that most directly contribute to public safety. The result is not just a distorted drug policy, but a policing model that serves budgets over communities.

Forfeitures undermine effective drug policy and other public safety priorities

Civil asset forfeiture exacerbates existing inequalities perpetuated by the War on Drugs, reinforcing racial disparities and disproportionately affecting marginalized communities. Because forfeiture creates a financial incentive to pursue low-level drug enforcement, it often leads to overpolicing in poor and minority neighborhoods. This increased emphasis on seizure-based policing doesn’t just misallocate officer time; it also clogs courts with minor drug cases and places unnecessary strain on already limited treatment programs and correctional systems. As a result, individuals with the most urgent needs—such as those experiencing homelessness, mental illness, or substance use disorder—are often overlooked because they don’t present a financial incentive through forfeiture. Meanwhile, limited public health resources are diverted to pursuing low-level seizures, rather than being invested in prevention, treatment, or harm reduction strategies that address the root causes of drug-related harm. Far from reducing substance use or improving community safety, civil forfeiture fuels a cycle of mistrust and inefficiency in systems meant to protect and support the public.

According to the Institute for Justice, the median value of property seized in Michigan was just $423, and in Pennsylvania, $369. In both states, the vast majority of seizures involved small amounts of cash, hardly the kind of assets typically associated with major criminal enterprises. Instead, it appears that law-abiding individuals are targeted by law enforcement for forfeiture.

When law enforcement is seen as prioritizing property seizures over public safety, it erodes the relationship between officers and the communities they serve. Police depend on everyday people to speak up–to report crimes, share what they’ve seen, or help move an investigation forward. But when community members worry that a simple interaction with law enforcement could lead to losing their car or cash, they’re far less likely to speak up, even in serious situations. In the end, everyone’s safety is compromised.

In addition, forfeiture has not been shown to reduce drug use or improve public safety. A study by Seattle University economist Brian D. Kelly found that increased forfeiture activity didn’t lead to reduced drug use or better crime clearance rates, but it did correlate with rising unemployment. This aligns with findings from the Institute for Justice, which reports that equitable sharing revenues peaked in 2013, shortly after the Great Recession. This suggests that law enforcement agencies turned to civil forfeiture as a financial lifeline amid declining tax revenues and growing demand for public services. While it’s difficult to isolate a single cause, the timing indicates that forfeiture increases are often tied more to economic strain than to actual public safety needs. That this surge frequently occurs without any accompanying criminal charges only deepens concern that civil forfeiture is driven by revenue generation, not justice.

Legislative and judicial challenges to civil asset forfeiture

Several states have enacted significant reforms to limit or eliminate civil asset forfeiture. North Carolina, New Mexico, and Maine have gone the farthest, banning civil forfeiture altogether and allowing property to be seized only through criminal forfeiture, following a conviction. Utah prohibits forfeiture when the property owner is acquitted of the charges. Other states have taken steps to increase transparency, raise the burden of proof, or direct forfeiture proceeds away from law enforcement budgets.

However, even the most robust state-level reforms face a major loophole: the federal Equitable Sharing Program. Some states have attempted to limit participation in equitable sharing by requiring a criminal conviction for property to be forfeited, or by restricting how shared proceeds can be used, with variable levels of success. For example, despite New Mexico banning civil asset forfeiture entirely in 2015 and requiring a criminal conviction for any forfeiture to occur, law enforcement agencies in the state have continued to generate significant revenue through the federal Equitable Sharing Program by receiving a portion of the funds from assets seized by federal law enforcement. Between 2000 and 2019, New Mexico law enforcement agencies received over $50 million in forfeiture revenue from this federal program, with a significant portion of the revenue coming after the state’s ban. While annual payouts declined, from over $5 million in 2013 to under $1 million by 2019, they remained substantial. In 2015 alone, the year the reform was passed, agencies still pulled in over $2.1 million. This is a clear sign that, without federal reform, even the most ambitious state efforts can be quietly undermined.

Numerous judicial challenges have been launched against the practice of civil asset forfeiture. Many of these cases do not challenge the constitutionality of civil asset forfeiture itself, but instead how it is administered. Culley v. Marshall explained the due process rights of innocent property owners involved in civil asset forfeiture cases. In Timbs v. Indiana, the state used civil asset forfeiture to seize a Land Rover purchased with life insurance money after Tyson Timbs was arrested for selling drugs. The U.S. Supreme Court ruled that the Excessive Fines Clause of the Eighth Amendment applied to state civil asset forfeiture cases. Upon remand, the Indiana Supreme Court subsequently ruled that the attempted forfeiture of the Land Rover was grossly disproportionate to the underlying offense. 

While Timbs was a landmark ruling in affirming constitutional protections against excessive forfeiture, its practical impact has been limited. The decision did not ban civil forfeiture or establish clear standards for what constitutes “excessive,” leaving it to lower courts to interpret on a case-by-case basis. As a result, many of the systemic issues–lower burdens of proof, insufficient due process, and financial incentives driving enforcement–remain intact. In practice, Timbs has provided an important legal tool, but not a comprehensive solution. The fundamental structure of civil forfeiture still allows property to be taken without a criminal conviction, and individuals often have to fight lengthy and expensive legal battles to get it back.

What’s next?  

There is growing bipartisan support for civil asset forfeiture reform, but resistance remains from local governments and law enforcement agencies that have come to rely on the revenue it generates. Often, the opposition is framed in terms of public safety, but at its core, this is a budgeting issue. For many cities and counties, civil forfeiture has become a means of funding operations without raising taxes. That might seem like a practical solution, but it’s a risky one. Relying on unpredictable, enforcement-based revenue creates harmful incentives and shifts the focus away from proper public safety. It also erodes trust, especially when property is taken from people who are never even charged with a crime.

To effectively reform civil asset forfeiture, specific measures should be pursued:

Increase Legal Standards: Raise the burden of proof required for asset forfeiture from “preponderance of the evidence” to “clear and convincing evidence” or require a criminal conviction before seizing assets. New Mexico, for example, abolished civil forfeiture entirely in 2015, mandating criminal convictions before assets can be seized, which has resulted in reduced abuses without compromising public safety.

Remove Financial Incentives: End the practice of allowing law enforcement agencies to retain seized assets for their own use. Maine illustrates this reform by mandating that forfeiture proceeds be deposited into the state’s general fund, thereby removing direct profit motives for law enforcement. Before this change, Maine’s law enforcement retained nearly all forfeiture funds, totaling over $3 million between 2009 and 2019. In 2023, the total amount seized through civil asset forfeiture was just $26,439.50–demonstrating what happens when financial incentives to seize are removed. 

Establish Transparency and Accountability: Require comprehensive, standardized, and publicly accessible reporting on all forfeiture activities. This should include detailed information on what was seized (type, value, and quantity of property), whether the owner was charged or convicted of a crime, the legal basis for the forfeiture, the law enforcement agency involved, how proceeds were spent, and the timeline from seizure to final disposition. Transparent reporting is crucial for tracking patterns, assessing fairness, and preventing abuse. States like Maine and Minnesota have implemented measures to enhance transparency, leading to increased public awareness and scrutiny of forfeiture practices. These transparency initiatives have highlighted specific abuses and demonstrated the need for continued improvements in record-keeping accuracy, public accessibility, and meaningful oversight.

Guarantee Due Process: Provide accessible legal mechanisms for property owners to quickly and effectively challenge seizures and recover assets that have been wrongfully taken. Arizona and New Mexico serve as models by requiring a criminal conviction before property can be forfeited, restoring the presumption of innocence, banning coercion of property owners to relinquish their rights, abolishing non-judicial forfeiture, and ensuring prompt, post-deprivation hearings. These reforms significantly reduced wrongful seizures and enhanced the rights of property owners. Before these changes, Arizona law enforcement seized more than $530 million over two decades, often without criminal charges or convictions. The new protections have effectively decreased abuse and increased fairness in asset forfeiture practices. While it’s still early to fully assess the impact of these reforms, they were designed to increase fairness and reduce potential abuses in asset forfeiture practices.

Close Legal Loopholes: Congress should either end the practice of equitable sharing or prevent it from violating conflicting state laws. The federal equitable sharing program provides local law enforcement opportunities to still benefit from civil asset forfeiture even when their states ban the practices because federal law enforcement can share revenue with them. This situation presents the problem that state-level reforms may be largely ineffective if the federal government does not also reform itself. If Congress is unwilling to abolish the program itself, then it must at least prevent local law enforcement from circumventing their own state laws.

Real reform requires action from policymakers, legal advocates, community leaders, and the general public. Advocating for these concrete changes will protect constitutional rights, rebuild community trust, and support more compassionate, effective, and fair approaches to public safety and drug enforcement.

The post How civil forfeiture targets everyday Americans, not kingpins appeared first on Reason Foundation.

Source: https://reason.org/commentary/how-civil-forfeiture-targets-everyday-americans-not-kingpins/