Spotlight Exclusives

Civil Forfeiture Hurts America’s Poor

Jennifer McDonald, Institute for Justice Jennifer McDonald, Institute for Justice, posted on

In 2014, Tyson Timbs sold $400 worth of drugs to undercover police in an effort to support his addiction. Tyson, a first-time offender, was sentenced to one year of house arrest and five years of probation and ordered to pay more than $1,200 in fines and fees. After Tyson paid his debt to society and got clean, the state of Indiana tried to further punish him by seizing his SUV. But in February, the U.S. Supreme Court ruled that the Eighth Amendment’s ban on excessive fines applied to the states, opening the door for Tyson to try to get his SUV back by arguing its taking is an excessive fine.

Indiana was able to take Tyson’s SUV thanks to a somewhat obscure procedure known as civil forfeiture. Civil forfeiture allows police and prosecutors to take people’s cash, cars, and other property without necessarily ever charging them with a crime—let alone convicting them of one. While there was a criminal conviction in Tyson’s case, the government never had to prove beyond a reasonable doubt that his vehicle was connected to his crime. That’s because in Indiana, as in most states and under federal law, prosecutors need only demonstrate property is “more likely than not” connected to a crime (a standard called preponderance of the evidence) to forfeit it. Even more alarming, agencies in most states get to keep some or all of the proceeds from forfeiture, creating potential conflicts between their financial self-interest and law enforcement duties.

The basic facts of civil forfeiture are concerning enough, but even more disturbing is how the practice disproportionately harms lower-income individuals and others likely to be less able to fight back and assert their rights. For example, an ACLU study of federal forfeiture data for California found the counties with the highest rates of seizures also have lower than average household incomes. The study also found that law enforcement agencies that police communities made up primarily of people of color account for 85 percent of California’s federal forfeiture activity.

Similarly, a 2017 analysis of Cook County, Illinois’ forfeiture data revealed the county’s forfeiture machine disproportionately targets Chicago’s lower-income neighborhoods. Many seizures are for low amounts of cash, a finding that suggests police are using forfeiture to treat people as ATMs rather than to go after large drug operations—the ostensible purpose of forfeiture.

Indeed, cash is by far the most common property type seized by local, state, and federal law enforcement agencies. Police may seize cash in the absence of drugs or other contraband, considering the cash’s very presence, even in low amounts, as evidence of a crime. This means people without access to bank accounts—a group in which Hispanic, black, working-age disabled, lower-income, less-educated, and younger households are overrepresented—may be particularly vulnerable to forfeiture.

Not only are lower-income individuals likely at greater risk of having property seized for civil forfeiture, but they are likely to find forfeiture actions more difficult to fight. Property owners in civil forfeiture cases are not entitled to a free attorney. If they cannot afford one, they must navigate the daunting process alone. Many people choose to walk away, certainly a rational choice when a seizure’s value is low. Perversely, the government may take such decisions as evidence of guilt.

Even when law enforcement agencies use civil forfeiture to take larger amounts of cash, this does not necessarily mean they are going after cartels or kingpins. Small-business owners, entrepreneurs, and others just trying to pursue their American Dream can also get caught in the government’s dragnet. Take musician and entrepreneur Phil Parhamovich, for example. For years, Phil saved for a recording studio. But before he could buy the studio, he nearly lost his life savings forever during a routine traffic stop. After pulling Phil over, police seized his cash as supposed evidence of a drug crime and sent him packing with a $25 ticket for not wearing a seatbelt. It took months and the help of the Institute for Justice, where I work, and a media campaign to get Phil’s money back. And Phil is not alone—he is just one of a number of innocent, hardworking Americans who have fallen victim to civil forfeiture.

Civil forfeiture is supposed to fight crime, but evidence is scant that it does. Evidence is more plentiful that civil forfeiture laws give law enforcement the ability and the incentive to take property from innocent people and that disadvantaged communities are disproportionately paying the price. Ironically, targeting communities in this way may make them less safe. For example, Tyson recalls how difficult it was to stay clean when he didn’t have a car to drive to work. He was able to borrow a relative’s car, but many are not so fortunate. To fulfill America’s promise of justice for all, it is time for states and the federal government to do away with civil forfeiture.

Jennifer McDonald is a senior research analyst at the Institute for Justice.

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