The Next Stage of Forfeiture Reform

Abstract: In passing the Civil Asset Forfeiture Reform Act of 2000, Congress instituted some badly needed reforms to a system that had spawned a good deal of governmental abuse, media investigation, and popular outrage. Unfortunately, however, CAFRA does not address the aspect of asset forfeiture law that is perhaps most responsible for fueling overzealous, sometimes lawless use of the forfeiture power: federal forfeiture law continues to authorize law enforcement agencies to retain the drug-related assets they seize for their own use, and many state laws do as well. With facilities, cruisers, computer and other equipment, salaries and positions sometimes dependent on how much money can be generated by their own seizures, police and prosecution agencies still routinely operate under a conflict between their economic self-interest and traditional law enforcement objectives. Freeing law enforcement of this conflict of interest is the next stage of forfeiture reform. In this article, we describe various routes to this next stage of forfeiture reform. 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 eliminate the conflict of interest that exists under some state statutes.