The Next Stage of Forfeiture Reform

Abstract

One problematic aspect of federal forfeiture law which remained untouched by the recent Civil Asset Forfeiture Reform Act is a provision authorizing law enforcement agencies to retain assets they seize for their own use. Indeed, pursuant to an adoption provision, a local police force is authorized to federalize its drug-related seizures and, upon forfeiture, receive back 80% of the assets for its own use. Many small police forces have been able to enhance their budgets several-fold via such forfeitures. In a previous, 1998 article, we argued that this arrangement threatens effective crime control and evenhanded justice by distorting police and prosecutorial agendas. We also argued that the arrangement may be unconstitutional on due process and separation of powers grounds. In this article, we describe various routes to reform of this dangerous arrangement. We first identify several situations in which litigation might bear fruit, and detail both due process and other constitutional objections to forfeiture in those cases. We then turn to the legislative route, with particular emphasis on state reforms that would not only eliminate the conflict of interest that exists under some state statutes, but also foreclose local police from evading their state's distribution formula through federal adoption.