A new report from the American Civil Liberties Union has shined a light on a growing issue in Nebraska, the increasing use of civil asset forfeiture and the practice known as equitable sharing. Civil asset forfeiture, also called civil judicial forfeiture, is a controversial legal process in which law enforcement agencies seize personal assets from individuals or groups suspected of a crime or illegal activity. This can be done even without bringing criminal charges against those whose assets are taken.
Proponents of forfeiture argue it allows law enforcement agencies to use seized assets toward their enforcement efforts, transforming property illicitly gained by criminals into resources to be used for public benefit. Critics of the process note it gives law enforcement agencies economic incentives to seize property, corrupting them and penalizing innocent property owners. Many states impose no penalties on law enforcement agents for wrongful seizures, and when property is deemed to have been taken illegally, taxpayers usually have to pay for the returned assets.
The standards of proof allowing seizure differ from state to state. In all civil forfeitures in Nebraska, property owners are presumed guilty and lose their property unless they contest forfeiture and prove they were not aware their property was being used illegally. Unless an owner actively works to recover his or her property, it will be lost. Property owners are often given very little opportunity to challenge the seizures. When given the opportunity, the process is expensive for those whose property is seized, as they must pay for attorneys and legal fees to prove their innocence. In many instances, property owners must meet with prosecutors, not a judge or jury, to regain their property.
Both the ACLU and Institute for Justice agree Nebraska law requires a very high standard, beyond a reasonable doubt, for property actually to be forfeited. However, the burden is lower (preponderance of evindence) for property to be seized in the first place, and once the property is seized the burden is on the property owner to establish innocence.
The main issue with the state’s forfeiture policies is its use of equitable sharing arrangements, whereby local law enforcement and federal officials agree to classify the suspected criminal activity as a federal crime and divide the seized assets between them. The federal agencies receive between 10 and 20 percent, and the local police get the remainder. This allows local law enforcement agencies to ignore state law and circumvent the will of state legislatures and the people.
Scott Bullock, senior attorney at the Institute for Justice, advocates eliminating forfeitures altogether except in cases of maritime and customs law. He also offers five recommendations for states not willing to halt all forfeitures: place seized revenues in neutral funds, increase the standard of proof for seizure to require “clear and convincing evidence” of a crime, move the burden of proof to the government, make the tracking of seized assets more transparent, and eliminate equitable sharing arrangements.
Nebraska is known to be a popular route for contraband, and it has annually ranked near the top of states in civil asset forfeitures. The ACLU report found Nebraska law enforcement agencies seized $42.6 million between 2004 and 2014, ranking the state as the fifth largest per-capita recipient of federal forfeiture dollars. In the years 2010–2014, the Nebraska State Patrol received nearly $5.3 million through forfeiture cases, the Douglas County Sheriff’s Office seized approximately $4.6 million, and the Omaha Police Department took nearly $2.9 million, the ACLU report found. All used the proceeds for new equipment and crime lab improvements.
Nebraska lawmakers should implement reforms removing incentives for police to seize assets and require clear evidence a person has committed a crime before property is taken.
The following documents provide additional information about civil asset forfeiture.
Guilty Money: Civil Asset Forfeiture in Nebraska
https://heartland.org/policy-documents/guilty-money-civil-asset-forfeiture-nebraska
Examining personal anecdotes from forfeiture victims and data from government, law enforcement, and nonprofit organizations, the American Civil Liberties Union finds many troubling trends and practices. Its research also identifies several promising policy reform solutions tested in other jurisdictions that could benefit the people of Nebraska.
Policing for Profit: The Abuse of Civil Asset Forfeiture
https://heartland.org/policy-documents/policing-profit-abuse-civil-asset-forfeiture
Marian Williams, Jefferson Holcomb, Tomislav Kovandzic, and Scott Bullock argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you prove it innocent,” they write.
Civil Asset Forfeiture, Equitable Sharing, and Policing for Profit in the United States
https://heartland.org/policy-documents/civil-asset-forfeiture-equitable-sharing-and-policing-profit-united-states
Jefferson E. Holcomb and Marian R. Williams, professors in the Department of Government and Justice Studies at Appalachian State University, and Tomislav V. Kovandzic, a professor in the University of Texas–Dallas School of Economic, Political, and Policy Studies, identify the effects of civil asset forfeiture reform on law enforcement activities. Their analysis of U.S. Department of Justice statistics confirmed “law enforcement [agencies] utilize a variety of tactics to generate the greatest revenue from their forfeiture operations.”
Seize First, Question Later: The IRS and Civil Forfeiture
https://heartland.org/policy-documents/seize-first-question-later-irs-and-civil-forfeiture
Institute for Justice (IJ) researcher Dick M. Carpenter II and IJ attorney Larry Salzman examine the use and abuse of civil asset forfeiture laws by the Internal Revenue Service. “Federal civil forfeiture laws give the Internal Revenue Service the power to clean out bank accounts without charging their owners with any crime,” they write.
Civil Asset Forfeiture: 7 Things You Should Know
http://www.heritage.org/research/reports/2014/03/civil-asset-forfeiture-7-things-you-should-knowThis Heritage Foundation factsheet outlines several important things people should know about civil asset forfeiture.
Civil Asset Forfeiture Reform Goes Mainstream
https://heartland.org/policy-documents/civil-asset-forfeiture-reform-goes-mainstream
Jordan Richardson of The Heritage Foundation discusses how civil asset forfeiture abuses have drawn the attention of news media and suggests the increased attention may lead to real reform.
The Civil Asset Forfeiture Racket
http://reason.com/archives/2014/09/24/the-civil-asset-forfeiture-racket
A. Barton Hinkle of the Reason Foundation examines the growing problems created by civil asset forfeiture and argues for repeal of such laws.
Inequitable Justice: How Federal ‘Equitable Sharing’ Encourages Local Police and Prosecutors to Evade State Civil Forfeiture Law for Financial Gain
https://heartland.org/policy-documents/inequitable-justice-how-federal-equitable-sharing-encourages-local-police-and-prose
This report from the Institute for Justice examines the federal law enforcement practice known as equitable sharing, which enables and indeed encourages state and local police and prosecutors to circumvent the civil forfeiture laws of their states for financial gain.
Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this subject, visit Budget & Tax News at http://news.heartland.org/fiscal, The Heartland Institute’s website at http://heartland.org, and PolicyBot, Heartland’s free online research database at www.policybot.org.
The Heartland Institute can send an expert to your state to testify or brief your caucus, host an event in your state, or send you further information on a topic. Please don’t hesitate to contact us if we can be of assistance! If you have any questions or comments, contact John Nothdurft, Heartland’s director of government relations, at [email protected] or 312/377-4000.
Matthew Glans joined the staff of The Heartland Institute in November 2007 as legislative specialist for insurance and finance.
