April 20, 2015 | Legal Memorandum on Legal Issues
Despite civil asset forfeiture’s noble intentions, the many stories of innocent victims and law enforcement abuses prove that the pendulum has swung too far in favor of law enforcement. In reforming forfeiture laws, however, we must be careful not to swing the pendulum too far in the opposite direction. The process should be made fairer and more transparent, the profit incentive of forfeiture should be abolished or severely constrained, and there should be greater oversight. Civil asset forfeiture should be returned to its original purpose: penalizing those who seek to profit from their illegal activities. If such funds were deposited into the general treasury, nothing would preclude law enforcement authorities from going to Congress or their state legislatures and seeking an increase in their budgets or victims’ compensation funds.
The chairmen of the Senate and House Judiciary Committees have stated that reforming federal civil asset forfeiture laws is a top priority for them. The Department of Justice’s Office of the Inspector General (DOJ IG) has issued several critical reports on how some federal agencies and state and local authorities administer their forfeiture programs. And Attorney General Eric Holder recently announced certain policy changes related to DOJ’s Equitable Sharing Program as part of a “first step” in a “comprehensive” departmental review of the federal asset forfeiture program.
Why all of this attention? The answer is that, despite its good intentions, civil asset forfeiture has gone awry and is in serious need of reform.
Civil asset forfeiture is based on a fiction, albeit one of ancient lineage, that property can be guilty of a crime and thereby forfeited to the sovereign regardless of whether any individual is ever charged with (and much less convicted of) a crime related to that property. It is a fiction because things obviously cannot think or act, but there is a laudable goal behind this fiction: the development of a means to deprive criminals of the fruits of their nefarious labor, sometimes in cases where it may be clear that particular property was used in a crime, but where the “kingpin”—be it a drug dealer, fraudster, foreign kleptocrat, or terrorist—is impossible to identify or is outside the United States, and to use some of those funds to compensate the victims of crime.
Regrettably, the procedures used to effectuate a civil forfeiture are skewed against innocent property owners whose property may have been misused by others to engage in criminal activity. Moreover, in many instances, what began as a means to a laudable end has become an end in itself.
Some law enforcement authorities focus more on getting money and property and less on catching criminals—behavior that some have referred to as a form of legalized bounty hunting. Police and prosecutors end up having a substantial budgetary stake in forfeiture because in most cases, the proceeds from any forfeited property are returned to the agency that seized it for its use, thereby providing a direct funding mechanism that is totally outside the legislative appropriations and oversight process.
This runs counter to the long-established principle of separation of powers. As George Mason, one of our Founding Fathers and often referred to (along with James Madison) as the father of the Bill of Rights, warned, “When the same man, or set of men, holds both the sword and the purse, there is an end of liberty.” As a 2011 study succinctly put it: “The dependency of police on public resources for their operations is an important check on police power. Self-generating revenues by the police through forfeiture potentially threatens the ability of popularly elected officials to constrain police activities.”
In the United States, the roots of civil asset forfeiture come from admiralty and customs law, under which ships carrying contraband on the high seas were seized and forfeited, usually because the ship’s owners were not aboard and could not be arrested and charged. Civil forfeiture grew during Prohibition, when laws were revised to permit the seizure of vehicles used by bootleggers.
But it was not until 1984, with the passage of the Comprehensive Crime Control Act and the war on drugs, that civil forfeiture really began to grow dramatically. Today, there are hundreds of forfeiture laws covering a broad panoply of federal crimes. The federal government also operates an Equitable Sharing Program that has dramatically expanded the scope of civil asset forfeiture.
Civil forfeiture differs from criminal forfeiture in several significant ways. In a criminal forfeiture case, the government sets out the property that is subject to forfeiture as part of the indictment against the individuals who used or derived the property, and the forfeiture proceeding is an ancillary proceeding that follows after the defendants are convicted. A civil forfeiture proceeding, on the other hand, is an in rem proceeding against the property only and does not involve any formal charges of wrongdoing against individuals. The types of property that can be forfeited, which include real and personal property, are any item used to commit a crime (facilitating property); the proceeds of crime (the fruit); or property bought with the proceeds of crime (substitute assets).
One of the main criticisms of civil asset forfeiture is that the deck is stacked against any property owner who wishes to contest the forfeiture. Because the legal proceeding is against the property rather than the property owner, the owner does not enjoy many of the constitutional protections that are afforded to those who are accused of engaging in criminal activity. Such inequities prompted Brad Cates, director of the asset forfeiture program at the Justice Department from 1985 to 1989, to declare recently that “[a]ll of this is at odds with the rights that Americans have.”
First, the vast majority of cases never see the inside of a courtroom. Any amount of currency can be administratively forfeited; the only time administrative forfeiture is not available is when the forfeiture involves any real estate or personal property worth more than $500,000 (except for so-called hauling conveyances: that is, vehicles, vessels, and aircraft allegedly used to transport illegal drugs, which, like cash or other monetary instruments, can be subjected to administrative forfeiture regardless of their value).
In an administrative proceeding, the agency that stands to gain directly from the forfeiture acts as investigator, prosecutor, judge, and jury. The rules and deadlines governing these proceedings are complicated and opaque, a minefield of technicalities full of traps for an unwary (and often unrepresented) property owner.
With the exception of the Customs Service, there is no effective judicial review from an administrative ruling, and the administrator does not even need to write an order justifying his or her decision. While there is within many agencies a process whereby someone can file a petition for mitigation or remission of the harsh effects of forfeiture, the rules do not allow someone to file such a petition while at the same time contesting the validity of the forfeiture itself. Moreover, it is once more an agency official, not an impartial arbiter, who acts on the petition.
Second, unlike a criminal case, there is no entitlement either to representation by counsel or (except as to real property) to a pre-seizure hearing. Forfeitures are often for an amount small enough that it would make little financial sense for a property owner to hire counsel to contest the forfeiture. Forfeiture cases can take months or years, effectively tying up somebody’s property and creating an extreme hardship for people of modest means or people who run small businesses.
Adding insult to injury, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) lays out specific filing deadlines that must be met by property owners challenging forfeitures. Failure to meet a filing deadline by even a day often results in immediate forfeiture, whereas agencies can allow property to languish in their custody for years.
Third, unlike a criminal case in which a prosecutor must prove a defendant’s guilt beyond a reasonable doubt, in a civil forfeiture case, the prosecutor only needs to establish the basis for the forfeiture by a preponderance of the evidence. Defenders of current civil asset forfeiture procedures note that preponderance of the evidence is the standard of proof that is traditionally used in civil cases. While a true statement, this does not mean that it is the appropriate standard to use in civil asset forfeiture cases given the clear connection between this type of action and a typical criminal case. Moreover, unlike a dispute between two private citizens, there are tremendous disparities in available resources and expertise between the property owner contesting the forfeiture and the governmental entity seeking the forfeiture.
Fourth, also unlike a criminal case in which the prosecutor must prove that the person who used or derived the property acted intentionally or at least was willfully blind to its misuse, in a civil case, the government does not have to prove any of that. Rather, the burden is placed on the “innocent owner” to prove a negative: that he did not know about its illegal use and that, if he did know about it, he did all that could reasonably be expected under the circumstances to terminate such use.
Defenders of current civil asset forfeiture procedures note that the Supreme Court of the United States has held that an innocent owner defense is not constitutionally required, yet the law provides a claimant with the opportunity to present such a defense. Again, while true, that does not mean that the current procedure is fair or the most appropriate standard under the circumstances. The Constitution provides a floor, not a ceiling, when it comes to providing rights; it states what must be provided at a minimum, not what ought to be provided to ensure fairness and strengthen the integrity of the process.
The amounts of money involved in forfeiture cases are huge and have grown exponentially. Many federal agencies within the Justice and Treasury Departments participate in forfeiture programs, including the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); the Drug Enforcement Administration (DEA); the Federal Bureau of Investigation (FBI); the Postal Inspection Service; the Marshal’s Service; the Internal Revenue Service (IRS); Immigration and Customs Enforcement (ICE); Customs and Border Protection (CBP); and others.
The Department of Justice administers the Assets Forfeiture Fund, the largest of several such funds. In 1985, the first year of its existence, the fund took in $27 million. In 2012, the value of seized assets had grown to $4.3 billion.
Many states have their own forfeiture programs but do not collect or publish such data. The majority of states allow law enforcement authorities to keep 100 percent of forfeiture proceeds, just as federal authorities are allowed to keep all proceeds forfeited under federal law. Only a small handful of states bar state and local authorities from using forfeiture proceeds; the rest allow the state and local authorities to keep somewhere between 50 percent and 95 percent of forfeiture proceeds.
In addition to work that federal and state agents do together as part of task forces, federal authorities frequently “adopt” state cases and institute federal forfeiture proceedings. When they do, federal authorities frequently return up to 80 percent of the proceeds to state and local authorities as part of an “equitable sharing” program. Equitable sharing represents serious money. In 2013, DOJ paid out $657 million through the Equitable Sharing Program, roughly a threefold increase from 2001. Since 1984, more than $5 billion has been dispersed directly to state and local law enforcement authorities for their use under this program.
Many local authorities prefer to have federal authorities handle forfeiture matters, in part because the Equitable Sharing Program enables them to circumvent any state laws that make forfeitures more difficult or less profitable than the federal route. This certainly runs counter to the spirit of federalism and impinges on state sovereignty.
Unfortunately, the financial incentives to seize cash and valuable property are so high that it sometimes warps the priorities of many law enforcement officials. For example, authorities have been known to let bad guys commit their crimes just so they can seize the cash that they earn from those crimes. Even though there is a federal ban on the use of equitably shared forfeiture funds to pay salaries or otherwise support budgets, hundreds of law enforcement agencies rely on such funds as part of their annual budgets.
Highway stops have also become a real problem.
A great many innocent motorists have been stopped and harassed by authorities. For example:
Moreover, it is not just highway stops. The IRS and other agencies have seized and forfeited bank accounts of individuals and small businesses for alleged structuring violations.
In order to help combat money laundering, the Bank Secrecy Act requires the filing of a currency transaction report for every transaction of more than $10,000 in currency. In order to avoid detection and the unwanted attention that might be triggered by such reports, drug dealers and others involved in criminal activity have been known to “structure” their financial transactions by breaking up large piles of cash into smaller bundles of under $10,000 and depositing them in different institutions or on different days. In order to discourage this, Congress passed a law (31 U.S.C. § 5324) making it a crime (punishable by fine, forfeiture, and up to five years in prison) to structure or attempt to structure a financial transaction for the purpose of evading a reporting requirement, and banks are required to file a “suspicious activity report” if they suspect that somebody might be engaged in structuring.
While it is true that there is nothing in the law that says that the currency being deposited must have come from an illegitimate source, it would certainly strike most people as horrifically unfair if the government were to use a law designed to catch criminals trying to launder their ill-gotten gains to target honest citizens and legitimate businesses that may be unaware of the law’s existence and that may have perfectly legitimate and sensible reasons for making regular cash deposits under $10,000. Yet that is precisely what is happening. Consider these examples:
Some of the seizures that have been made seem to be wildly disproportionate and unfair in relation to the alleged offense.
Additionally—and not surprisingly—with an influx of cash and no real accountability, enforcement officials sometimes spend forfeiture funds in highly questionable ways, some of which have been deemed permissible while others have not.
Fortunately, there have been some positive developments recently at both the state and federal levels that may help to ameliorate some of these abuses, although more is needed. Facing significant opposition from local law enforcement agencies, who treat this issue as though it were an existential threat, a few intrepid states have taken steps to reform their own laws to make the process fairer and more transparent.
At the federal level, the IRS recently announced that it would no longer seek forfeitures in structuring cases unless it has evidence that the business or individual making the deposits was engaged in criminal activity. The DOJ has announced a similar internal policy shift. However, neither agency is dropping any of its pending structuring cases. Moreover, these are only policy changes that can be reversed at any time.
More significantly, on January 16, 2015, Attorney General Eric Holder announced a new policy limiting when agency participants in the Equitable Sharing Program can “adopt” cases involving assets seized by state or local authorities under state law. He stated that this was part of a comprehensive Justice Department review of DOJ’s civil asset forfeiture program.
Of course, this too is only a policy change that can be reversed at any time. It remains to be seen how much of an impact DOJ’s new policy will have, since there are several exceptions that threaten to swallow the rule.
Despite DOJ’s efforts to stave off action by Congress, there appears to be a great deal of bipartisan support for reform. The Fifth Amendment Integrity Restoration (FAIR) Act of 2015, recently introduced by Senator Rand Paul (R–KY) and Congressman Tim Walberg (R–MI), would address many of the issues discussed herein, including:
Proposals like the FAIR Act and measures being debated by several state legislatures deserve serious consideration. Despite forfeiture’s noble intentions, the many stories of innocent victims and law enforcement abuses prove that the pendulum has swung too far in favor of law enforcement.
In reforming forfeiture laws, however, we must be careful not to swing the pendulum too far in the opposite direction. For the sake of citizens, the process should be made fairer and more transparent, the profit incentive of forfeiture should be abolished or severely constrained, and there should be greater oversight.
In other words, civil asset forfeiture should be returned to its original purpose: penalizing those who seek to profit handsomely from their illegal activities. If such funds were deposited into the general treasury, nothing would preclude law enforcement authorities from going to Congress or their state legislatures and seeking an increase in their budgets or victims’ compensation funds. Such requests could then be weighed in due course against competing legislative priorities.
After many years of struggling to draw the public’s attention to this issue, those who favor reforming our nation’s asset forfeiture laws finally appear to have momentum. Through unfortunate and ill-advised instances of overreaching and, in some cases, outright avarice, law enforcement authorities who favor the status quo may be hoist by their own petard.—John G. Malcolm is Director of and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. The author would like to thank Jason Snead, Research Associate in the Meese Center, for his able and diligent assistance with this Legal Memorandum.
 Jennifer Jacobs, Grassley’s Checklist of Priorities, Des Moines Reg., Jan. 7, 2015, available at http://www.desmoinesregister.com/story/news/politics/2015/01/07/grassley-checklist-priorities-judiciary-committee/21394233/; http://judiciary.house.gov/index.cfm/hearings?Id=2966A160-FF62-4083-B937-3F3C399CAF11&Statement_id=1288FD34-6459-4E29-B8B2-CEC779CF9B33. Problems with current civil asset forfeiture proceedings have even become fodder for comedians. See Last Week Tonight with John Oliver: Civil Forfeiture, HBO (Oct. 5, 2014), available at https://www.youtube.com/watch?v=3kEpZWGgJks (last accessed March 3, 2015) (Warning: contains profanity).
 Office of the Inspector Gen., U.S. Dep’t of Justice, Review of the Drug Enforcement Administration’s Use of Cold Consent Encounters at Mass Transportation Facilities (2015), available at http://www.justice.gov/oig/reports/2015/e153.pdf; Office of the Inspector Gen., U.S. Dep’t of Justice, Audit of the City of Sunrise Police Dept’s Equitable Sharing Program Activities (2014), available at http://www.justice.gov/oig/reports/2014/g4015003.pdf; Office of the Inspector Gen., U.S. Dep’t of Justice, Audit of the Oklahoma Highway Patrol’s Equitable Sharing Program Activities (2013), available at http://www.justice.gov/oig/reports/2013/g6013014.pdf.
 Press Release, Dept. of Justice, Attorney General Prohibits Federal Agency Adoptions of Assets Seized by State and Local Law Enforcement Agencies Except Where Needed to Protect Public Safety (Jan. 16, 2015), available at http://www.justice.gov/opa/pr/attorney-general-prohibits-federal-agency-adoptions-assets-seized-state-and-local-law.
 See, e.g., Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680–686 (1974) (discussing history of forfeiture); Charles Doyle, Crime and Forfeiture, Congressional Research Service (Jan. 22, 2015), available at http://fas.org/sgp/crs/misc/97-139.pdf (discussing history of forfeiture); Donald J. Boudreaux & A. C. Pritchard, Civil Forfeiture and the War on Drugs: Lessons from Economics and History, 33 San Diego L. Rev. 79, 135 (1996).
 See, generally, Federal Asset Forfeiture: Uses and Reforms: Hearing Before the Subcomm. on Crime, Terrorism, Homeland Security, and Investigations of the H. Comm. on the Judiciary, 114th Cong. (2015) (testimony of Kenneth A. Blanco), available at http://judiciary.house.gov/_cache/files/f60fb681-47a1-4a79-a803-9359a497aaf6/blanco-testimony.pdf.
 See, e.g., Policing and Prosecuting for Profit: New Jersey Ex-Sheriff Fights Civil Forfeiture Abuse, Institute for Justice, Litigation Backgrounder, available at https://www.ij.org/new-jersey-civil-forfeiture-background.
 See Jonathan Yardley, A Founding Father Insisted that the Constitution Wasn’t Worth Ratifying Without a Bill of Rights, Wash. Post, Nov. 5, 2006, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/11/02/AR2006110201182_pf.html.
 George Mason, Fairfax County Freeholders’ Address and Instructions to Their General Assembly Delegates (May 30, 1783), in Jeff Broadwater, George Mason: Forgotten Founder 153 (2006).
 Jefferson E. Holcomb, Tomislav V. Kovandzic, & Marian R. Williams, Civil Asset Forfeiture, Equitable Sharing, and Policing for Profit in the United States, 39 J. Crim. Just. 273, 283 (2011).
 21 U.S.C. § 881(e)(3) provides the Attorney General with authority to transfer property forfeited under federal law to participating state and local law enforcement agencies.
 In 2000, Congress passed the Civil Asset Forfeiture Reform Act (CAFRA), which was designed to provide claimants with some modest additional protections, including affording an owner the opportunity to petition the court for release of certain kinds of property pending the completion of forfeiture proceedings, establishing an “innocent owner’s” defense, allowing an indigent claimant who is already represented by court-appointed counsel in connection with a related federal criminal case to request the assistance of court-appointed counsel to contest the forfeiture, and requiring the government to pay attorney’s fees and costs if it loses a forfeiture action. Property owners, however, are rarely apprised of their rights under CAFRA, and because most forfeitures are administrative, its provisions are rarely invoked.
 Robert O’Harrow, Jr. & Steven Rich, Asset Seizures Fuel Police Spending, Wash. Post, Oct. 11, 2014, available at http://www.washingtonpost.com/sf/investigative/2014/10/11/cash-seizures-fuel-police-spending/.
 See Federal Asset Forfeiture: Uses and Reforms: Hearing Before the Subcomm. on Crime, Terrorism, Homeland Security, and Investigations of the H. Comm. on the Judiciary, 114th Cong. (2015) (testimony of David B. Smith), available at http://judiciary.house.gov/_cache/files/e1528de2-86fc-4bc4-b1d2-0fd1075ff554/smith-testimony.pdf.
 Most seizing agencies adhere to the old doctrine that a petition for remission “presumes a valid forfeiture.” The Customs Service is the exception, permitting a petitioner to challenge the underlying basis for the forfeiture. See 19 C.F.R. 171.31 (allowing a petitioner to seek remission on the grounds that “the act or omission forming the basis of a penalty or forfeiture claim did not in fact occur.”). Petitioners are seldom aware that by seeking remission or mitigation, they are sacrificing the chance to pursue their case in court.
 CAFRA codified the right to a pre-seizure hearing in real property cases, as originally articulated by the Supreme Court in United States v. James Daniel Good Real Property, 510 U.S. 43 (1993). See 18 U.S.C. § 985. However, this right exists only if the property is physically seized. “Constructively” seizing the property, such as posting a notice of complaint or filing a lis pendens notice, carries no such right. Consequently, actual seizure by the government of real property is rare so as to avoid this hearing requirement.
 In U.S. v. $8,850, 461 U.S. 555 (1983), the Supreme Court applied the Barker v. Wingo, 407 U.S. 514 (1972), speedy trial test to civil forfeiture cases, acknowledging that significant delays in forfeiture proceedings undoubtedly create hardships for property owners but do not necessarily constitute a violation of a property owner’s due process rights.
 Pub. L. No. 106-185, 114 Stat. 202 (2000).
 In 2012, the assets of Bi-County Distributors, Inc., a small, family-run business that sold snacks, candy, and cigarettes to local convenience stores, were seized over alleged structuring violations. For two and a half years, the federal government retained the assets without filing a forfeiture action or charging the owners with a crime. Held Up: Feds Use Civil Forfeiture to Seize More than $446,000 from Innocent Family Business; Deny Hearing for More than Two Years, Institute For Justice, Litigation Backgrounder, available at http://www.ij.org/long-island-forfeiture-backgrounder.
 There is a long history of jurisprudence blurring the line between civil and criminal proceedings in forfeiture cases. In Boyd v. United States, 116 U.S. 616, 634 (1886), the Supreme Court determined that “forfeitures incurred by the commission of offenses against the law are…quasi-criminal [in] nature.” Relying on its holding in Boyd, the Court applied the exclusionary rule, previously reserved for criminal prosecutions, to certain civil forfeiture cases in One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965). The Court also acknowledged in Austin v. United States, 509 U.S. 602 (1993), that certain forfeitures are bound by the limits of the Excessive Fines Clause. And in U.S. v. Bajakajian, 524 U.S. 321 (1998), the Court adopted a gross disproportionality test to determine whether such a forfeiture violates the Excessive Fines Clause.
 See, e.g., 18 U.S.C. § 983(d); Richard Jacobson & Hunt Leibert, Don’t Be Caught Red-Handed: When Your Property Is Involved in a Crime, USFN (2005), available at http://www.usfn.org/AM/PrinterTemplate.cfm?Section=USFN_E_Update&template=/CM/HTMLDisplay.cfm&ContentID=2241; Charles Doyle, Crime and Forfeiture, Congressional Research Service (January 22, 2015), available at http://fas.org/sgp/crs/misc/97-139.pdf.
 See Bennis v. Michigan, 516 U.S. 442 (1996).
 The other federal forfeiture funds are the Department of the Treasury Forfeiture Fund and the Crime Victims Fund, administered by the Justice Department’s Office for Victims of Crime, which is part of DOJ’s Office of Justice Programs. A Special Forfeiture Fund, originally financed by the Office of National Drug Control Policy, has been abolished. See Charles Doyle, Crime and Forfeiture, Congressional Research Service (January 22, 2015), available at http://fas.org/sgp/crs/misc/97-139.pdf.
 In 2013, the fund held more than $1.8 billion.
 See Marian R. Williams, Jefferson E. Holcomb, Tomislav V. Kovandzic, & Scott Bullock, Policing for Profit: The Abuse of Civil Asset Forfeiture, Institute for Justice (March 2010) at Table 1, available at http://www.ij.org/policing-for-profit-the-abuse-of-civil-asset-forfeiture-4.
 For a description about how the program operates, see http://www.justice.gov/usao/ri/projects/esguidelines.pdf.
 See, e.g., John Worrall, Addicted to the Drug War: The Role of Civil Asset Forfeiture as a Budgetary Necessity in Contemporary Law Enforcement, 29 J. Crim. Just. 171–87 (2001); Marian R. Williams, Jefferson E. Holcomb, Tomislav V. Kovandzic, & Scott Bullock, Policing for Profit: The Abuse of Civil Asset Forfeiture, Institute for Justice (March 2010), available at http://www.ij.org/policing-for-profit-the-abuse-of-civil-asset-forfeiture-4; Sarah Stillman, TAKEN: Under Civil Forfeiture, Americans Who Haven’t Been Charged with Wrongdoing Can Be Stripped of Their Cash, Cars, and Even Homes. Is that All We’re Losing?, New Yorker, Aug. 12, 2013, available at http://www.newyorker.com/magazine/2013/08/12/taken; David Slayton, Admin. Dir., Office of Court Admin., Asset Forfeiture in Texas: DPS and County Interactions, Public Policy Research Institute (2014), available at http://www.txcourts.gov/media/782473/sting-report-final.pdf.
 See Michael Sallah, Robert O’Harrow, Jr., & Steven Rich, Stop and Seize: Aggressive Police Take Hundreds of Millions of Dollars from Motorists Not Charged with Crimes, Wash. Post, Sept. 6, 2014, available at http://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/.
 See Andrew Denney, CPD Chief Ken Burton’s “Pennies from Heaven” Mentioned on “Last Week Tonight with John Oliver,” Columbian Daily Tribune (Oct. 6, 2014), http://www.columbiatribune.com/blogs/after_deadline/cpd-chief-ken-burton-s-pennies-from-heaven-mentioned-on/article_e7d0c9a9-8cd7-5c18-b23e-78d1ca8d7fb5.html.
 See Laura Sullivan, Police Can Seize and Sell Assets Even When the Owner Broke No Law, NPR (Nov. 10, 2014), http://www.npr.org/blogs/thetwo-way/2014/11/10/363102433/police-can-seize-and-sell-assets-even-when-the-owner-broke-no-law.
 See Randy Furst, Victims of Metro Gang Strike Force Awarded $840,000, Star Tribune (July 23, 2012), http://www.startribune.com/local/minneapolis/163478566.html. Minnesota now requires a criminal conviction before civil forfeiture proceedings can be initiated, and the standard of proof has been raised to “clear and convincing evidence.” See Ilya Somin, Minnesota Adopts Law Curbing Asset Forfeiture Abuse, Volokh Conspiracy (May 10, 2014), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/05/10/minnesota-adopts-law-curbing-asset-forfeiture-abuse/.
 The entire series can be accessed at http://www.washingtonpost.com/investigations/dc-police-plan-for-future-seizure-proceeds-years-in-advance-in-city-budget-documents/2014/11/15/7025edd2-6b76-11e4-b053-65cea7903f2e_story.html.
 See Sallah, O’Harrow, & Rich, supra note 29.
 See, e.g., Phil Williams, I-40 Search Raises New “Policing for Profit” Questions, News Channel 5 (Nov. 11, 2014), http://www.jrn.com/newschannel5/news/newschannel-5-investigates/policing-for-profit/I-40-Search-Raises-New-Policing-For-Profit-Questions-282197971.html; Officer Larry Bates: Liar, Thief, and the Face of “Asset Forfeiture” in Tennessee, Republic Magazine, http://www.republicmagazine.com/videos/officer-larry-bates-liar-thief-and-the-face-of-asset-forfeiture-in-tennessee.html; Phil Williams, Middle Tennessee Police Profiting Off Drug Trade?, News Channel 5 (May 16, 2011), http://www.jrn.com/newschannel5/news/newschannel-5-investigates/policing-for-profit/265578741.html.
 See, e.g., James Bovard, Seizure Fever: The War on Property Rights, The Freeman (Jan. 1, 1996), http://fee.org/freeman/detail/seizure-fever-the-war-on-property-rights/; Roger Pilon, America’s Frightening “Policing for Profit” Nightmare, Nat’l Interest (Jan 23, 2015), http://nationalinterest.org/feature/americas-frightening-policing-profit-nightmare-12094; Jeff Brazil & Steve Berry, Tainted Cash or Easy Money?, Orlando Sentinel (June 14, 1992), http://articles.orlandosentinel.com/1992-06-14/news/9206131060_1_seizures-kea-drug-squad.
 See, e.g., Elora Mukherjee, Settlement Means No More Highway Robbery in Tenaha, Texas, ACLU Blog (Aug. 9, 2012), https://www.aclu.org/blog/criminal-law-reform-racial-justice/settlement-means-no-more-highway-robbery-tenaha-texas; Sarah Stillman, TAKEN: Under Civil Forfeiture, Americans Who Haven’t Been Charged with Wrongdoing Can Be Stripped of Their Cash, Cars, and Even Homes. Is That All We’re Losing?, New Yorker, Aug. 12, 2013, available at http://www.newyorker.com/magazine/2013/08/12/taken.
 See, e.g., Editorial, Forfeiture Without Due Process, Wash. Post, Jan 2, 2012, available at http://www.washingtonpost.com/opinions/forfeiture-without-due-process/2011/12/22/gIQAckn3WP_story.html; Sarah Stillman, TAKEN: Under Civil Forfeiture, Americans Who Haven’t Been Charged with Wrongdoing Can Be Stripped of Their Cash, Cars, and Even Homes. Is That All We’re Losing?, New Yorker, Aug. 12, 2013, available at http://www.newyorker.com/magazine/2013/08/12/taken.
 See, e.g., Robert O’Harrow & Michael Sallah, They Fought the Law. Who Won?, Wash. Post, Sept. 8, 2014, available at http://www.washingtonpost.com/sf/investigative/2014/09/08/they-fought-the-law-who-won/; Nick Sibilla, Cops Seized $17,550 from Driver, Never Charged Him with a Crime, Institute for Justice (Oct. 9, 2014), http://www.ij.org/cops-seized-17-550-from-driver-never-charged-him-with-a-crime.
 See Robert O’Harrow & Michael Sallah, They Fought the Law. Who Won?, Wash. Post, Sept. 8, 2014, available at http://www.washingtonpost.com/sf/investigative/2014/09/08/they-fought-the-law-who-won/.
 See, e.g., Anthony Zurcher, The Growing Outcry over Police Confiscation, BBC News Echo Chambers (Sept. 16, 2014), http://www.bbc.com/news/blogs-echochambers-29228851; Police Seizure of Motorists’ Money on Rise, Concealment $2.5 Billion Given 9/11, Automotive Digest (Sept. 8, 2014), http://automotive.tdprofiti.com/police-seizure-of-motorists-cash-on-rise-netting-2-5-billion-since-911.html; Michael Sallah, Robert O’Harrow, Jr., & Steven Rich, Stop and Seize: Aggressive Police Take Hundreds of Millions of Dollars from Motorists Not Charged with Crimes, Wash. Post, Sept. 6, 2014, available at http://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/.
 See, e.g., Phil Williams, Man Loses $22,000 in New “Policing for Profit” Case, News Channel 5 (Mar. 20, 2013), http://www.jrn.com/newschannel5/news/newschannel-5-investigates/policing-for-profit/265578441.html; Officer Larry Bates: Liar, Thief, and the Face of “Asset Forfeiture” in Tennessee, Republic Magazine, http://www.republicmagazine.com/videos/officer-larry-bates-liar-thief-and-the-face-of-asset-forfeiture-in-tennessee.html.
 Some insurance companies, for example, will insure against theft up to $10,000, prompting many small-business owners who regularly collect cash from customers to limit their deposits to under $10,000 in case they are robbed on the way to the bank.
 Between 2005 and 2012, more than a third of IRS structuring cases were civil cases in which structuring itself was the only alleged offense. Over the same time period, funds seized purely for alleged structuring violations rose to $26.5 million, an increase of 111 percent. Between 2007 and 2013, funds actually forfeited in these cases rose 490 percent. See Dick Carpenter II & Larry Salzman, Seize First, Question Later: The IRS and Civil Forfeiture, Institute for Justice (Feb. 2015), available at http://www.ij.org/seize-first-question-later.
 See, e.g., Jonathan Turley, Federal Prosecutors Seize Creamery’s Accounts Under Terror Financing Law, jonathanturley.org (June 28, 2013), http://jonathanturley.org/2013/06/28/federal-prosecutors-seize-creamarys-accounts-under-terror-financing-law/; Md. Farmer Settles Federal Financial Probe, CBS Baltimore (May 31, 2012), http://baltimore.cbslocal.com/2012/05/31/md-farmer-settles-federal-financial-probe/; Paul Strand, Felon Farmers? Law Criminalizes Legitimate Businesses, CBN News (Oct. 1, 2012), http://www.cbn.com/cbnnews/us/2012/july/felon-farmers-law-criminalizes-legitimate-businesses/.
 See, e.g., Shaila Dewan, I.R.S. Asset Seizure Case Is Dropped by Prosecutors, N.Y. Times, Dec. 13, 2014, available at http://www.nytimes.com/2014/12/14/us/irs-asset-forfeiture-case-is-dropped-.html?_r=0; Chris Carson, Iowa Restaurant to Close Its Doors After IRS Seizes Accounts; No Crime Committed, KDAT (Oct. 29, 2014), http://kdat.com/iowa-restaurant-to-close-its-doors-after-irs-seizes-accounts-no-crime-committed/.
 See, e.g., Rachael Bade, IRS Under a Spotlight for Freezing Assets, POLITICO (Feb. 11, 2015), http://www.politico.com/story/2015/02/irs-under-a-spotlight-for-freezing-assets-115091.html; Jim Thompson, Athens Gun Shop Owner Testifies to Congress on Asset Seizure, Athens Banner-Herald (Feb. 13, 2015), http://onlineathens.com/local-news/2015-02-12/athens-gun-shop-owner-testifies-congress-asset-seizure; Small Business Owners Forced to Battle IRS over Seized Bank Accounts, FoxNews.com (Feb. 11, 2015), http://www.foxnews.com/politics/2015/02/11/small-business-owners-battle-irs-over-seized-bank-accounts/.
 See Shaila Dewan, Law Lets I.R.S. Seize Accounts on Suspicion, No Crime Required, N.Y. Times, Oct. 25, 2014, available at http://www.nytimes.com/2014/10/26/us/law-lets-irs-seize-accounts-on-suspicion-no-crime-required.html.
 See id.; Shaila Dewan, $447,000 Seized by Government Will Be Returned to Business, N.Y. Times, Jan. 20, 2015, available at http://www.nytimes.com/2015/01/21/us/447000-seized-by-government-will-be-returned-to-business.html; Rachael Bade, IRS Under a Spotlight for Freezing Assets, POLITICO (Feb. 11, 2015), http://www.politico.com/story/2015/02/irs-under-a-spotlight-for-freezing-assets-115091.html.
 See, e.g., Press Release, Federal Judge Rules CAID Raid Arrests and Car Seizures Unconstitutional, ACLU (2012), available at https://www.aclu.org/criminal-law-reform/federal-judge-rules-caid-raid-arrests-and-car-seizures-unconstitutional; Lee DeVito, John Oliver Revisits “the Funkiest Shakedown in Human History,” the CAID Raid, Metro Times (Oct. 7, 2014), http://www.metrotimes.com/Blogs/archives/2014/10/07/john-oliver-revisits-the-funkiest-shakedown-in-human-history-the-caid-raid.
 See, e.g., Nick Sibilla, Philadelphia Earns Millions by Seizing Cash and Homes from People Never Charged with a Crime, Forbes (Aug. 26, 2014), http://www.forbes.com/sites/instituteforjustice/2014/08/26/philadelphia-civil-forfeiture-class-action-lawsuit/; Sarah Stillman, TAKEN: Under Civil Forfeiture, Americans Who Haven’t Been Charged with Wrongdoing Can Be Stripped of Their Cash, Cars, and Even Homes. Is That All We’re Losing?, New Yorker, Aug. 12, 2013, available at http://www.newyorker.com/magazine/2013/08/12/taken?currentPage=all.
 See, e.g., United States v. 434 Main St., 961 F.Supp.2d 298 (D. Mass 2013); United States v. 434 Main Street, Tewksbury, Mass. (The Motel Caswell): Federal & Local Law Enforcement Agencies Try to Take Family Motel from Innocent Owners, Institute for Justice, available at https://www.ij.org/massachusetts-civil-forfeiture; Elizabeth Kreft, Civil Asset Forfeiture Victim Fought—and Won—When the Government Tried to Take His Property, The Blaze (Oct. 2, 2014), http://www.theblaze.com/stories/2014/10/02/civil-asset-forfeiture-victim-fought-and-won-when-the-government-tried-to-take-his-property/; Jon Chesto, Tewksbury Motel Owner Wins Battle Against Feds in High-Profile Property Seizure Case, BBJ The Bottom Line (Jan. 24, 2013), http://www.bizjournals.com/boston/blog/bottom_line/2013/01/motel-caswell-owner-victorious-over-feds.html?page=all.
 Shaila Dewan, Police Use Department Wish List When Deciding Which Assets to Seize, N.Y. Times, Nov. 9, 2014, available at http://www.nytimes.com/2014/11/10/us/police-use-department-wish-list-when-deciding-which-assets-to-seize.html.
 See Report: Fulton DA Spent Public Funds on Parties, Athens Banner-Herald (June 7, 2013), http://onlineathens.com/local-news/2013-06-07/report-fulton-da-spent-public-funds-parties.
 See, e.g., Paul Pinkham, Georgia Inmates Reportedly Did Work out of State, Florida Times-Union, Oct. 14, 2007, available at http://jacksonville.com/tu-online/stories/101407/met_208183322.shtml; John Burnett, Sheriff Under Scrutiny over Drug Money Spending, NPR (June 18, 2008), http://www.npr.org/templates/story/story.php?storyId=91638378; Terry Dickson, Former Camden Sheriff Challenges Incumbent to Get Job Back, jacksonville.com (July 30, 2012), http://jacksonville.com/news/crime/2012-07-30/story/former-camden-sheriff-challenges-incumbent-get-job-back; Teresa Stepzinski & Terry Dickson, A Tool to Fight Crime or Just a Lot of Flash?, Florida Times-Union, Aug. 7, 2002, available at http://jacksonville.com/tu-online/stories/080702/met_10114798.html.
 See Mark Collette, As New Questions Emerge, Former District Attorney Garza Speaks About Forfeiture Funds, caller.com (Jan. 22, 2012), http://www.caller.com/news/as-new-questions-emerge-former-district-attorney.
 See Office of the Inspector Gen., U.S. Dep’t of Justice, Audit of the Oklahoma Highway Patrol’s Equitable Sharing Program Activities (2013), available at http://www.justice.gov/oig/reports/2013/g6013014.pdf.
 See Office of the Inspector Gen., U.S. Dep’t of Justice, Audit of the City of Sunrise Police Dept’s Equitable Sharing Program Activities (2014), available at http://www.justice.gov/oig/reports/2014/g4015003.pdf.
 See Collette, supra note 57.
 See Renee Lee, Montgomery DA Says Funds Used for Liquor at Cook-off, Chron (Mar. 18, 2008), http://www.chron.com/neighborhood/humble-news/article/Montgomery-DA-says-funds-used-for-liquor-at-1757341.php.
 See Melanie Scott Dorsey, Ex-Romulus Police Chief, Wife, 5 Officers Head to Trial, Detroit Free Press, Sept. 27, 2012, available at http://www.freep.com/article/20120927/NEWS02/309270120/Ex-Romulus-police-chief-wife-5-officers-head-to-trial; Dave Bartkowiak, Jr., Ex-Romulus Police Chief Sentenced for Corruption, Click On Detroit (Oct. 17, 2014), http://www.clickondetroit.com/news/exromulus-police-chief-sentenced-for-corruption/29196354; Guy Burns, Romulus Police Chief’s Wife, Patrica St. Andre, Gets 7 to 20 Years in Prison for Operating Criminal Enterprise, mlive.com (Feb. 20, 2014), http://www.mlive.com/news/detroit/index.ssf/2014/02/romulus_police_chiefs_wife_pat.html.
 See Laura Krantz & Jessica Trufant, Audit: Worcester DA’s Office Bought Zamboni, Lawn Gear with Forfeited Drug Money, MetroWest Daily News (Feb. 15, 2013), http://www.metrowestdailynews.com/x1522323792/Audit-Worcester-DAs-office-bought-Zamboni-lawn-gear-with-forfeited-drug-money#ixzz2LH4vHjJv.
 In Maine, 15 M.R.S.A. § 5822 (4) requires “the disposition of the property to the General Fund, less the reasonable expenses of the forfeiture proceedings, seizure, storage, maintenance of custody, advertising and notice,” with certain exceptions for the transfer of title to state, municipal, and county agencies. The North Dakota Century Code, Chapter 29-31.1-06, permits the seizing agency to retain forfeited property for official use, transfer custody to another agency, or arrange for sale of the property, the proceeds of which, together with monetary forfeitures, shall be deposited in the “appropriate state, county, or city general fund” minus costs. Vermont has multiple forfeiture statutes. For example, 23 V.S.A. § 1213c(j) requires that excess proceeds from vehicle forfeitures be deposited in the general fund.
 In Missouri, section 513.623 of the Missouri Revised Statute mandates that proceeds from the sale of forfeited goods be distributed “pursuant to section 7 of article IX of the Constitution of the state of Missouri,” which covers investment of education funds.
 Conn. Gen. Stat. § 54-36h (b); Fla. Stat. § 932.704 (8); Utah Code 24-1-4 (6)(c).
 Neb. Rev. Stat. 28-431 (4); Wisconsin Statute section 973.076(3) establishes that the “state shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence” that property is subject to civil forfeiture.
 See Jason Snead & Andrew Kloster, Washington, D.C., Civil Forfeiture Reform: A Model for the States, Heritage Foundation Issue Brief No. 4312 (Dec. 5, 2014) available at http://www.heritage.org/research/reports/2014/12/washington-dc-civil-forfeiture-reform-a-model-for-the-states.
 Regarding Minnesota, see https://www.revisor.mn.gov/bills/text.php?version=latest&session=ls88&number=SF0874&session_year=2014&session_number=0&format=pdf; http://dailysignal.com/2014/05/16/minnesota-raises-bar-forfeiture-reform/. In North Carolina, civil forfeiture actions (G.S. G.S. § 1-532) are initiated pursuant to G.S. § 14-2.3, which requires that forfeiture actions be filed within three years of the date of conviction. Colorado Revised Statutes 16-13-307 requires that a property owner be convicted of a specified offense before a judgment of forfeiture may be entered.
 See Memorandum from the Attorney General on Guidance Regarding the Use of Asset Forfeiture Authorities in Connection with Structuring Offenses (Mar. 31, 2015), available at http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/31/ag-memo-structuring-policy-directive.pdf.
 See Press Release, U.S. Dept. of Justice, Attorney General Prohibits Federal Agency Adoptions of Assets Seized by State and Local Law Enforcement Agencies Except Where Needed to Protect Public Safety (Jan. 16, 2015), available at http://www.justice.gov/opa/pr/attorney-general-prohibits-federal-agency-adoptions-assets-seized-state-and-local-law; Attorney General, Order, Prohibition on Certain Federal Adoptions of Seizures by State and Local Law Enforcement Agencies (2015), available at http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/01/16/attorney_general_order_prohibiting_adoptions.pdf; Robert O’Harrow, Jr., Sari Horwitz, & Steven Rich, Holder Limits Seized-Asset Sharing Process that Split Billions with Local, State Police, Wash. Post, Jan. 16, 2015, available at http://www.washingtonpost.com/investigations/holder-ends-seized-asset-sharing-process-that-split-billions-with-local-state-police/2015/01/16/0e7ca058-99d4-11e4-bcfb-059ec7a93ddc_story.html.
 For additional information about how forfeiture activity might be affected by this new policy, see Federal Asset Forfeiture: Uses and Reforms: Hearing Before the Subcomm. on Crime, Terrorism, Homeland Security, and Investigations of the H. Comm. on the Judiciary, 114th Cong. (2015) (testimony of Darpana Sheth) (Appendix B), available at, http://judiciary.house.gov/_cache/files/84cdaf08-d3d2-4810-92aa-2c035e809488/sheth-testimony.pdf.
 U.S. Gov’t Accountability Office, GAO-12-736, Justice Assets for Forfeiture Fund: Transparency of Balances and Controls over Equitable Sharing Should Be Improved 43 (2012), available at http://www.gao.gov/assets/600/592349.pdf.
 FAIR Act, S. 255, 114th Cong. (2015), available at http://www.paul.senate.gov/files/documents/ALB15102.pdf. The companion bill in the House of Representatives is H.R. 540.