Just how much money and property are New Jersey’s law-enforcement agencies seizing from citizens each year? How are the seized funds spent? Are citizens actually being convicted of the crimes that police and prosecutors allege they have committed when justifying these seizures? Amazingly, in New Jersey, none of these questions can be answered with any certainty.
The reason: New Jersey law currently has no reporting or transparency requirements for law-enforcement entities engaged in civil asset forfeiture. Local and state agencies can seize property, keep up to 100 percent of the proceeds and spend millions of dollars each year without any oversight from lawmakers and the public. They are left in the dark, and that’s a recipe for abuse. New Jerseyans deserve better.
Lawmakers in Trenton seem to agree. In December, both the Assembly and state Senate unanimously passed Senate Bill 2267, a reform package that promises transparency for New Jersey’s civil-forfeiture system. If Governor Christie signs the bill, the Garden State will join dozens of others that have in recent years reined in what is today a too-often abused practice.
Civil forfeiture dates back to medieval English common law and has existed in the United States since the colonial era. It is largely based on the legal fiction that inanimate property can be “guilty” of a crime and therefore be forfeited to the state. Civil-forfeiture cases target property, not people, meaning that no criminal charges need to be filed, much less proven in a criminal court, for the state to strip citizens of their homes, cash and other property.
For most of the last 200 years, civil forfeiture in the United States was a niche practice restricted to admiralty and customs law. It was only in the 1970s and '80s that Congress and the states beefed up forfeiture provisions in their legal codes to allow law enforcement groups to target the assets and ill-gotten gains of the worst-of-the-worst categories of offenders, typically drug kingpins, criminal organizations and money launderers.
That limited use of forfeiture was laudable, but since then the reach and scope of forfeiture practices have grown precipitously. Today, more than 400 federal laws and countless state laws authorize cash and property seizures for all manner of alleged crimes. Thus, the focus of forfeiture has drifted from kingpins to average Joes.
In Philadelphia, for example, officials routinely take cash worth as little as $100. Before Washington, D.C., enacted forfeiture reform, half of all cash seizures were for amounts less than $141. Last year, in New Jersey, one man had $171 seized as alleged drug proceeds, and the state demanded $175 in filing fees just to challenge the seizure.
These individual cash seizures for petty amounts of money contribute to millions in revenues that New Jersey law-enforcement agencies generate annually, kept and spent with no political oversight and precious little accountability. New Jersey law lacks mandatory reporting requirements, so data are incomplete, but it is known that between 2009 and 2013, county district attorneys seized $72.6 million.
No information is available on sums generated by the state or its municipalities, so the actual total during this period was likely much higher.
No government agency – not even one as honorable and vital to civil society as law enforcement – should be able to generate revenue through the forcible seizure of property, in near-total secrecy. S2267 aims to increase transparency, requiring prosecutors to “annually compile and submit to the Attorney General” reports detailing, among other things, what they are seizing and its value, the “alleged criminal offense associated with the seizure” and the outcome of any related criminal charges. These reports must also include how much money the agency generates annually, and the “specific law enforcement purpose” for every expenditure of forfeiture funds.
New Jersey’s forfeiture reform is not a panacea. Serious work remains, including much-needed procedural reforms so that, among other things, property owners are no longer required to effectively prove their own innocence in forfeiture cases. Lawmakers would also be wise to consider raising the standard of proof in forfeiture cases and ending dubious financial incentives altogether.
This reform is a solid first step. If signed, New Jersey will join the growing chorus of states, including California and Ohio, that are working to rein in an abuse-prone system.
This piece originally appeared in Bergen Record