Every year, local, state and federal law enforcement agencies across the United States seize and keep billions of dollars in cash, cars, homes and other property using a legal tool called forfeiture. Criminal forfeiture requires that prosecutors prove people are guilty by securing a conviction before forfeiting their property as part of their punishment. But with civil forfeiture, police and prosecutors can typically seize property on the mere suspicion it was involved in a crime. Most often, no charges or convictions are ever required to permanently deprive people of their property. With both criminal and civil forfeiture, federal and most state laws permit law enforcement agencies to use the proceeds of the property they take to supplement their budgets, often with few restrictions.
Making matters worse, most of this forfeiture activity—criminal and civil—happens with little legislative or public oversight. So does most spending from forfeiture funds. This report examines forfeiture reporting requirements and practices for all 50 states, as well as the District of Columbia and the U.S. departments of Justice and the Treasury. It finds that forfeiture programs nationwide suffer from a lack of transparency and accountability.
This lack of transparency and accountability is a problem for at least three reasons. First, it undermines the legislative branch’s power of the purse. Forfeiture funds are acquired outside normal budget appropriations. And without oversight, agencies can spend them secretively, subverting the democratic controls embodied by city councils, county commissions and legislatures.
Second, poor transparency and accountability make it difficult to properly evaluate forfeiture programs. Is forfeiture truly targeting criminals? And what are the costs? Absent requirements that key details be tracked and reported, there are few good ways of answering these and other important questions.
Third, weak transparency and accountability practices can compromise agencies’ duty to responsibly manage seized property. All seized property will eventually either be returned to owners or become public property and so must be tracked properly to avoid improper spending and other mishaps, such as disposing of seized property prematurely.
Improved transparency and accountability are no substitute for comprehensive reforms to civil forfeiture laws that fail to protect property and due process rights and give law enforcement agencies a financial stake in forfeiture efforts. Nonetheless, they are vitally important. And greater transparency can provide insight critical to forfeiture reform efforts.
The report cards grade states and federal departments on six key elements of forfeiture program transparency and accountability:
For each element, grades reflect the strength of existing forfeiture reporting laws and practices. The grading methodology is generous, giving credit wherever possible. Still, the grades reveal that much work remains to achieve transparency and accountability in state and federal forfeiture programs.
Law enforcement agencies should carefully track every piece of property they seize—cash, car or any other item—for as long as they hold it. Careful property tracking serves two important purposes. First, it enables agencies to responsibly manage seized property, all of which will eventually either be returned to its owner or become public property via forfeiture. And second, it can help agencies, as well as state officials and legislators, evaluate the effectiveness, and cost-effectiveness, of their forfeiture programs.
Unfortunately, many states perform dismally on this element of transparency and accountability. Twenty states earn a D+ or below, and nine of those do not appear to require any form of property tracking, leaving in doubt even such basic questions as what was seized and how much it was worth, who seized it, when it was seized, where it was seized, and why it was seized. Without such information, agencies may have trouble tracking what they have, returning property to rightful owners, and meeting legal deadlines and obligations.
On the other end of the spectrum, Arizona earns the highest grade of A+. In April 2017, Arizona reformed its reporting laws to require tracking of all 20 of the 20 key details about seized property graded here. Not far behind is the U.S. Department of Justice, which earns an A-. The DOJ maintains a central database, the Consolidated Asset Tracking System, or CATS, that records 17 details graded here, as well as many others.
Arizona’s example, and the fact that all 20 details graded here are recorded by at least one other state or by the DOJ or U.S. Department of the Treasury, indicates that such tracking is eminently doable. States that require little or no property tracking leave important information unknown. For example, agencies in just 17 states, as well as the DOJ and Treasury, record whether forfeitures happen under civil or criminal procedures or whether an individual whose property was seized was ever charged with a crime. Just 10 states and the DOJ record who, if anyone, filed a claim to retrieve seized property.
Nearly every state allows law enforcement agencies to keep some or all of the funds they generate through forfeiture. Agencies can often spend these funds with few restrictions, though in some states they can only recoup certain costs associated with their forfeiture programs. Either way, agencies acquire these funds outside the budget appropriations process and can, in a majority of states, spend them without any legislative oversight: 26 states earn an F for requiring no reporting at all on how agencies use forfeiture proceeds.
Wherever agencies can self-finance through forfeiture, they should have to report how they spend the money within standard categories of law enforcement costs (drug abuse, crime, and gang prevention programs; investigation costs; and personnel or “other” operating costs; etc.), as well as their forfeiture fund’s balance at the close of the reporting period.
Twelve states earn an A on this element of transparency and accountability. Their examples prove that accounting for forfeiture fund spending is possible and point the way for the states that fail to require any such accounting.
Additionally, four states and the District of Columbia forbid law enforcement from spending forfeiture funds or recouping costs from forfeiture proceeds; instead, forfeiture proceeds go to a neutral fund, such as a school fund or general fund. These states are not graded on this element.
Keeping good records is necessary but not sufficient for transparency and accountability in forfeiture programs. For fuller transparency and accountability, agency records should be collected in a central location and regularly compiled into statewide or, in the case of federal departments, department-wide reports.
The best such reports:
Reports meeting these four criteria deliver a timely and more complete picture of state or national forfeiture activity, making it easier for legislators and members of the public to evaluate forfeiture programs.
A third of states do not produce statewide reports at all and therefore receive an F on this element of transparency and accountability. And most of the remaining states produce reports that are missing critical information. In particular, too few states—29—as well as the District of Columbia and the U.S. Department of Justice provide agency-level data, and only 14 states and the U.S. departments of Justice and the Treasury include data about expenditures.
Only 11 states and the Department of Justice receive an A for producing reports that meet all four criteria.
Statewide forfeiture reports and agency records are only useful for promoting transparency and accountability to the extent that legislators and members of the public can actually access them. And the best way of ensuring that statewide reports and other forfeiture records are easily accessible is to require that they be published online.
A number of states currently require statewide reports or other forfeiture records, such as agency-level records, to be put online. Eighteen states and the District of Columbia meet the gold standard of requiring statewide reports or agency-level records to be published online as a matter of law and thus receive an A on this element of transparency and accountability. Likewise, the U.S. departments of Justice and the Treasury receive an A because federal law requires them to make their forfeiture funds’ annual financial statements available online. Thirteen other states post statewide reports online despite having no legal requirement. This practice is laudable, but it only merits a B because it could change at any time without the force of law behind it.
A handful of states do not publish forfeiture reports or records online but receive a C for explicitly designating agency records as “public records” in their laws, a practice that makes them explicitly retrievable by freedom-of-information requests. Twelve states keep agency-level forfeiture records but neither publish them online nor officially declare them public records, meaning that records may be difficult to identify—and that law enforcement agencies may try to deny freedom-of-information requests for their release. These states receive a D.
The three remaining states keep no known forfeiture records, resulting in zero transparency or accountability for their forfeiture programs and an F on this element.
Reporting requirements are only as good as they are enforceable. Yet 23 states, the District of Columbia and Congress have no mechanism in place for ensuring that law enforcement agencies, or federal departments, file required forfeiture reports—and do so on time.
To ensure timely compliance with reporting requirements, the gold standard would be withholding forfeiture funds until an agency has reported and imposing a fine or other sanction for late filings. Only one state, Georgia, earns an A for putting such penalties into law, though it is not clear that they are being imposed in practice.
A handful of states receive a B for withholding forfeiture funds, which is likely to encourage eventual filing, though not necessarily full compliance with deadlines. Four states fine agencies that fail to report or force them to pay for an audit. Since agencies in those states can still access forfeiture funds even if they fail to report, they may opt to absorb these fees and never comply. These states receive a C. Another six states list agencies that are out of compliance in their statewide reports. While this practice could lead to legislative or public pressure to file, it is unlikely to have much of an effect on its own and therefore merits a D.
Nine states have no reporting requirements to enforce; they receive an “Incomplete” on this element.
States can make it easier to differentiate between agencies that did not engage in forfeiture activity during the reporting period and those that are failing to follow the rules by always requiring agencies to report, regardless of whether they seized or forfeited any property during the reporting period. Fifteen states and the U.S. departments of Justice and the Treasury currently require the filing of so-called null reports; this requirement is denoted by an asterisk after their grade.
With law enforcement agencies in most states able to self-finance via their forfeiture activity, routine audits are crucial to guarantee the financial integrity of forfeiture accounts and ensure that funds are not misappropriated or misspent. Yet 30 states never require financial audits of agency forfeiture accounts, resulting in an F on this element of transparency and accountability.
Currently, only nine states and the U.S. departments of Justice and the Treasury earn an A for requiring annual or biennial independent financial audits of forfeiture accounts—the gold standard for ensuring that audits are regular and timely, and for avoiding conflicts of interest.
Michigan receives a B for requiring annual internal audits. Such requirements ensure regular and timely audits but may present a conflict of interest in allowing an agency to audit itself. In five states, forfeiture accounts are subject to independent audit at the discretion of a government oversight body. Because routine audits are better for ensuring financial integrity, such states receive a C. Louisiana receives a D; its forfeiture accounts are subject to discretionary internal audits.
Finally, four states and the District of Columbia forbid law enforcement from spending forfeiture funds or recouping costs from forfeiture proceeds; instead, forfeiture proceeds go to a neutral fund, such as a school fund or general fund. These states are not graded on this element.
Nationwide, forfeiture programs are plagued by a lack of transparency and accountability. While a number of states do well on a few elements, only Arizona receives all A’s or B’s and many receive mostly D’s and F’s. Lawmakers interested in transparency and accountability should review their state’s report card to see where improvement is needed and then use the Institute for Justice’s model legislation to reform their forfeiture reporting laws.
IJ’s model legislation can help legislators codify existing good practices to ensure that they do not change with the political winds. It can also help legislators ensure that their forfeiture reporting reforms work as intended. This is important because law enforcement agencies will often do only the minimum required. For example, in 2015, the Texas Legislature amended its forfeiture reporting laws to require the attorney general to produce a statewide forfeiture report and put that report online. Unfortunately, the revised statute only specifies that the report include the total amount forfeited by law enforcement agencies and state attorneys each year—not information about individual agencies’ activities. Accordingly, that is all Texas’ new one-page report does, providing very little insight into how forfeiture is used in the state. Texas receives a D for its statewide report.
On their own, the reforms advocated here cannot fix fundamental problems with forfeiture laws that threaten property and due process rights. But they can ensure that forfeiture programs are exposed to the light of day so that legislators and the public can see how forfeiture is being used and what its proceeds are buying—and hold law enforcement accountable.
Are you a reporter or citizen watchdog interested in shedding light on seizures and spending in your state? View our template to create your own public records request.
To identify forfeiture reporting practices currently in use across the country, we used legal research and public records requests to collect the following six categories of documents for each state and the federal government wherever possible:
We began by collecting each state’s forfeiture reporting statutes in order to analyze what kinds of seizure and spending information must be tracked, reported and made publicly available, as well as how states encourage compliance with reporting requirements and promote financial integrity in their forfeiture programs. Because the statutes often grant authority to oversight bodies to develop regulations that augment the statutory reporting requirements, we also gathered these regulations. In addition, we collected all available statewide and federal department-wide forfeiture reports. These often provide information beyond what is required by law, but they do not always reveal all of the key details that agencies track and provide to oversight bodies. To capture such details, we also examined the local reports that law enforcement agencies must submit to oversight bodies, the reporting forms that agencies fill out in order to create those reports, and the guidelines issued by the oversight body that provide agencies with directions for completing the forms. If any other relevant documents turned up during our research, such as additional property inventories maintained by law enforcement agencies, we examined them for additional reporting details.
States are given the benefit of the doubt wherever possible. For instance, if a state does not require something but agencies in the state do it anyway, credit is awarded. By the same token, credit is not withheld from states where agencies are out of compliance with reporting requirements or not yet fully in compliance with new reporting requirements, provided the requirements themselves meet the standard.
Tracking Seized Property
On this element of forfeiture transparency and accountability, more detailed record-keeping earns higher grades. During data collection, we identified 20 key details about seized property that are tracked internally by at least one state or federal entity. We counted how many of these key details law enforcement agencies must record about property they seize. Grades are then assigned using the following scale:
|Grade||Number of Details|
This grade reflects only what agencies must track internally—not necessarily what they must report publicly or to a city council or legislature. A different grade accounts for how readily available forfeiture records are.
It is possible that some states track details for which they have not received credit; credit has only been awarded where we found evidence of such tracking.
Accounting for Forfeiture Fund Spending
Higher grades on this element of transparency and accountability are awarded to states that require more detailed reporting on expenditures from forfeiture funds. Our research identified nine broad categories of standard law enforcement costs as well as an indicator of how much agencies spend from forfeiture funds overall, for a total of 10 accounting items. We counted how many of these details each state or federal government requires agencies to report and assigned grades using the following scale:
|Grade||Percentage of Details|
Some states do not allow agencies to use forfeiture funds on one or more of the nine categories of spending. They consequently do not require reporting on those categories. To avoid penalizing such states, states are graded only according to the spending categories they actually allow. And to keep the grading scale consistent despite different denominators, states are graded on a percentage basis.
It is possible that some states report details for which they have not received credit; credit has only been awarded where we found evidence of such reporting.
States that do not permit law enforcement to spend forfeiture revenue at all are not graded on this element.
Statewide Forfeiture Reports
The most useful statewide reports we found during data collection:
Statewide reports that meet more of these criteria earn higher grades, while states without a report earn an F, as in the following scale:
|Grade||Number of Criteria|
|F||No statewide report|
In some states that recently changed their forfeiture reporting laws, the law is silent as to whether forthcoming statewide reports must provide agency-by-agency data. We therefore cannot know whether those states’ new reports will provide such data until the reports actually become available. In the meantime, such states’ report cards will show a question mark (?) for the third criterion above.
States that send all forfeiture proceeds to a general fund without deducting expenses need only report data about seized properties to earn full credit for the fourth criterion above.
Accessibility of Forfeiture Records
Higher grades on this element of transparency and accountability are awarded to states that make forfeiture information more easily accessible to legislators and the public. Our research identified four transparency practices currently in use by at least one state or federal entity for their statewide reports and other forfeiture records. We subsequently ranked the practices from most to least transparent, as in the following scale:
|A||Required by law to be published online|
|B||Published online, although not required to be|
|C||Designated by law as public records subject to freedom-of-information requests|
|D||Known to exist, but not explicitly designated as public records|
|F||No known records|
Because not all states create statewide reports, this grade reflects transparency practices for different types of reports and records in different states. In states with statewide reports, grades reflect whether those reports are required to be online or are regularly posted online. Agency-level records may be more difficult to obtain than grades in such a state suggest.
In states without statewide reports, grades reflect the availability of agency-level records.
States with no known forfeiture records receive an F.
Penalties for Failure to File a Report
On this element of transparency and accountability, higher grades are awarded to states whose penalties for noncompliance are more likely to have the desired effect of ensuring that agencies are filing required reports on time. We identified four ways states penalize agencies for failing to report and ranked them from most to least stringent, as in the following scale:
|A||Forfeiture funds withheld until report filed and agency fined for late filing|
|B||Forfeiture funds withheld until report filed|
|C||Agency fined or forced to pay for audit|
|D||Agency identified in statewide report for failure to file|
|Incomplete||No reporting requirements to enforce|
States with no penalties receive an F. States with no reporting requirements to enforce receive an “Incomplete” in lieu of a grade.
Some states always require agencies to report, regardless of whether they seized or forfeited any property during the reporting period; such requirements allow oversight bodies to differentiate between agencies that did not engage in forfeiture activity during the reporting period and those that are failing to follow the rules. An asterisk (*) is appended to a state’s grade if agencies in that state must file a so-called null report.
Financial Audits of Forfeiture Accounts
Higher grades on this element of transparency and accountability are awarded to states that require regular, timely and independent financial audits of forfeiture accounts, thereby promoting greater integrity in accounting for forfeiture revenue and spending. We identified four audit types currently in use by at least one state or federal entity and ranked them from best to worst, as in the following scale:
|A||Annual or biennial independent audit|
|B||Annual or biennial internal audit|
|C||Subject to independent audit at government oversight body’s discretion|
|D||Subject to internal audit at government oversight body’s discretion|
States with no audit requirement receive an F.
This grade is not applicable to states that do not permit law enforcement agencies to spend forfeiture revenue and instead direct all forfeiture proceeds to a general fund subject to legislative control.