New Report: Forfeiture Doesn’t Work to Combat Crime but Is Used to Raise Revenue

Across the country, law enforcement agencies use forfeiture to take billions of dollars in cash, cars and homes under the guise of fighting crime. Yet a new study authored by Brian Kelly, PhD, associate professor of economics at Seattle University and released by the Institute for Justice (IJ), “Does Forfeiture Work?,” demonstrates that state forfeiture programs do not help police fight crime. Instead, the study indicates that police use forfeiture to boost revenue—in other words, to police for profit. The study uses a newly assembled set of forfeiture data from five states that use forfeiture extensively—Arizona, Hawaii, Iowa, Michigan and Minnesota—as well as detailed state and local crime, drug use and economic data.

Specifically, the new study finds:

• More forfeiture proceeds do not help police solve more crimes—and they may, perversely, make police less effective at solving violent crimes.
• More forfeiture proceeds do not lead to less drug use, even though forfeiture proponents have long cited fighting the illicit drug trade—and the reduction of drug use—as a primary purpose of forfeiture.
• When local budgets are squeezed, police respond by increasing their reliance on forfeiture. A one percentage point increase in unemployment—a common measure of economic health—is associated with an 11% to 12% increase in forfeiture activity.

“Law enforcement representatives have argued that any civil liberties intrusions from forfeiture are justified because the revenue helps fight crime, but the evidence does not support this,” says Kelly. “In fact, the focus on bringing in revenue may well detract from efforts to fight serious, violent crimes.”

Watch a video interview with Dr. Kelly here.

This work builds on a 2019 nationwide study that considered whether the federal government’s equitable sharing forfeiture program was effective in fighting crime. Similarly, that study showed that forfeiture failed to fight crime but is used to raise revenue.

The scale of forfeiture is vast, with states and the federal government raking in at least $68.8 billion since 2000. With not all states providing complete data, this figure drastically undercounts property taken from people through forfeiture. The five states studied in “Does Forfeiture Work?” are among those that provide the most data, making this analysis possible.

The vast majority of forfeitures are conducted using civil forfeiture, a process that tips the scales heavily in the government’s favor. After the government seizes property, owners must navigate a maze of procedures to try to get it back. Owners are not afforded an attorney and the government need not charge them with a crime, let alone convict them of one, to forfeit—permanently keep—their property. Instead, the government just has to connect property to alleged criminal activity by a standard of proof that is typically far lower than the proof beyond a reasonable doubt required in a criminal trial. Finally, since many law enforcement agencies get to keep forfeiture proceeds, they have an incentive to seize as much as possible. These civil liberties concerns have prompted many states to closely consider or pass forfeiture reforms.

The findings from “Does Forfeiture Work?” are also reinforced by another recent study showing that when New Mexico eliminated civil forfeiture, public safety was not compromised. Compared to those in neighboring Colorado and Texas, crime rates in New Mexico remained steady in the months and years following the reform, suggesting forfeiture does not deter crime and law enforcement is able to do their jobs without forfeiture proceeds.

“This is more powerful evidence that lawmakers across the country need to prioritize ending civil forfeiture and replacing it with criminal forfeiture,” said Lee McGrath, IJ’s senior legislative counsel. “For years, law enforcement has maintained, on the basis of mere anecdotes, that forfeiture is essential to crime fighting and combating drug abuse. Lawmakers can ensure law enforcement is focused on public safety by removing the incentives to police for profit.”

Since the Institute for Justice began its End Forfeiture initiative in 2010, 35 states and the District of Columbia have enacted forfeiture reforms. Seven states and the District have restricted equitable sharing, limiting law enforcement’s ability to receive funding through the program and making it harder for law enforcement to circumvent state civil forfeiture laws. And in 2015, New Mexico abolished civil forfeiture, replacing it with criminal forfeiture and requiring that all forfeiture proceeds be deposited in the state’s general fund. In 2019, IJ secured a landmark victory in Timbs v. Indiana, where the U.S. Supreme Court unanimously ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on “excessive fines.”