A new report from the New Jersey affiliate of the American Civil Liberties Union takes a good, hard look at civil asset forfeiture and concludes that it is prone to widespread abuse and disproportionately used against people of color.
Civil asset forfeiture, also known as civil forfeiture, and sometimes disparagingly referred to as “policing for profit” is a legal process by which law enforcement officers take people’s property away from them on mere suspicion of a crime without necessarily arresting them or bringing charges. The statutes that govern it are N.J.S.A. 2C:64-1 et seq.
The textbook case of civil forfeiture is the seizure of illegal narcotics from suspected drug dealers, as well as cash believed to have been used in or earned from narcotics transactions.
But forfeiture can involve a wide range of assets, many of which are far more innocuous. Cars, boats, houses, jewelry, art, electronics – just about anything can be seized. The report lists baseball cards, a bicycle, an iPod, shoes and laptops, among other items.
The law enforcement agency must file a forfeiture complaint in court within 90 days. The government must show there was an actual or planned crime and tie the confiscated property to that specific crime. This requires showing that the property represents proceeds of the crime, was used or meant to be used in furtherance of it, or was “integral” to it. In contrast to the beyond-a-reasonable-doubt standard of proof that applies in a criminal trial, the prosecutor must meet only the preponderance of the evidence – more likely than not – standard. Once the prosecutor does that, the owner can get the property back by showing they were not involved in or aware of the crime and had done all that could reasonably be expected to prevent such use of the property by someone who might have otherwise been using it without their consent or knowledge.
The owner’s burden can be difficult to meet, and also costly, to the extent it requires hiring a lawyer to litigate the issue in court. Unlike defending criminal charges, there is no right to assigned counsel in this context. Many, whose possessions are swept up by forfeiture, lack the resources to contest it. If they fail to do so or try and fail, the law enforcement agency that seized the assets gets to keep the property or sell it for cash, which in either instance is supposed to be used solely for law enforcement purposes. If the property can serve no lawful purpose or is dangerous, it is supposed to be destroyed.
Prosecutors can also get to hold on to seized assets as part of a plea deal.
Law enforcement agencies thus “have a perverse incentive to seize as much as possible from those least able to fight back,” as the report noted. There is the risk that police will target people who commit low-level offenses because they have significant assets to seize.
Illustrating just how rarely people fight back, of 1,860 forfeiture actions brought in New Jersey during a five-month period, only 50 were contested, according to the report.
During that same five month period, January through May of 2016, assets worth $5.5 million were seized, including 234 cars. The county with the largest volume of forfeiture actions was Hudson, accounting for more than 400 seizures, half of which were less than $175, the ACLU-NJ found.
People of color are disproportionately affected because they are far more likely to be stopped by police. In fact, the report cites a 2013 statistic that black people in Jersey City were arrested for low-level offenses at a rate 9.6 times that of whites.
One of the leading New Jersey cases on this subject is State of New Jersey v. One 1990 Ford Thunderbird, 371 N.J. Super. 228 (2004), where the Cumberland County Prosecutors office sought to keep a car confiscated by police from a man who was using it to sell marijuana. The car was registered to his mother who raised a due process challenge, contending that those who seize property via forfeiture have a direct financial stake in the outcome of their actions, resulting in biased administration of the law, or at least its appearance or potential.
Finding that a substantial portion of county prosecutor budgets came from forfeited assets and forfeited funds are used for basic purposes, such as training and equipment, the trial judge declared the New Jersey forfeiture law unconstitutional The Appellate Division reversed, citing the facts that county prosecutors do not personally benefit, that anticipated forfeitures cannot be used in setting their budgets or paying their salaries and that, except for prima facie contraband such as narcotics, weapons, and stolen goods, a judge gets the final word on validity of a seizure.
Another leading case, State v. One 1986 Subaru, 120 N.J. 310, decided by the New Jersey Supreme Court in 1990, also involved a due process challenge. The Subaru was seized the same day its owner was charged with death by auto resulting from a drag race on Bloomfield Avenue in Newark. The Court found no due process violation based on the late issuance of a summons in the civil forfeiture action.
The ACLU-NJ report concludes with recommendations for reform: allowing forfeiture only where there is a criminal conviction, with all the attendant protections of that process; eliminating the profit motive by no longer allowing law enforcement to keep the confiscated assets; and making the process more transparent.
In 2016, the Legislature unanimously passed a transparency bill, S-2267, that required county prosecutors to submit detailed annual reports to the Attorney General, including information on what they seized, when and where they seized it, its market value, the associated crime, disposition of the criminal case, final disposition of the property (whether returned, kept, or sold) and if not returned, the specific law enforcement purpose for which the property or funds were used. The reports were also supposed to encompass forfeitures received by local law enforcement within the counties. On February 6, 2017, however, Governor Chris Christie conditionally vetoed the legislation, stating the “voluminous” information it required had “no legitimate or logical relationship to the asset being seized or the ultimate use of the asset” and disclosure of some of the details “could hamper ongoing law enforcement operations, undercut the effectiveness of law enforcement programs, and ultimately jeopardize the safety of the public and law enforcement officers.”
The measure, reintroduced this year as S-1963, passed the Senate 37-0 on July 1 but the Assembly counterpart, A-3442, has been languishing in the Law and Public Safety Committee since March without a hearing.
In 2015, New Jersey’s forfeiture laws got a D– grade from the Institute for Justice, a non-profit libertarian public interest law firm in Alexandria, Virginia, that argued against forfeiture as an amicus in the New Jersey Thunderbird case, alongside the ACLU-NJ and the Association of Criminal Defense Lawyers of New Jersey. The Institute made that assessment in a review of state forfeiture laws summarized in a report titled “Policing for Profit.” New Jersey’s just short of failing grade was based on the low bar prosecutors must meet, the poor protections for innocent third-party owners and the fact that law enforcement gets to keep as much as 100% of what it seizes. New Jersey had plenty of company with more than 20 other states rated at D-, including Pennsylvania, Illinois, Ohio, Washington State and Hawaii. The highest score, an A-, went to New Mexico, followed by only four states with a B+.
New Jersey Spotlight’s December 13 article about civil forfeiture and the ACLU-NJ report is worth a read.