Table of Contents Introduction I. The Law and Policy of Asset Forfeiture A. The Early Origins of Asset Forfeiture B. Forfeiture and the War on Drugs C. The Current Landscape 1. Asset forfeiture in practice 2. Contemporary justifications and critiques 3. Evaluating asset forfeiture II. Asset Forfeiture Data and Descriptive Statistics A. Description of the Data B. Summary Statistics (All Districts, All Years) III. The History and Geography of Asset Forfeiture A. Asset Forfeiture Geography B. Asset Forfeiture Over Time IV. Contextualizing the Findings A. Understanding the Findings 1. The prevalence of forfeiture at the border 2. Incentives in the current system B. The Path Ahead 1. Understanding asset forfeiture's tradeoffs 2. Shifting DOJ incentives and priorities 3. Doctrinal and legislative opportunities Conclusion Appendix
Introduction
Like many police departments, the Tulsa Police Department has a fleet of Ford Crown Victoria sedans for police officers to drive when they work. In addition to the sedans in the fleet, the Tulsa Police Department also owns a single Cadillac Escalade, which is depicted in Figure 1. The police department has adorned its Escalade with a decal that spans the rear window, announcing to all who encounter it on the road: "This Used To Be A Drug Dealer's Car Now It's Ours!"
The Tulsa Police Department came to own its Escalade through the legal process known as asset forfeiture. Asset forfeiture law--which allows the government to take ownership of money and property used in or obtained via a crime--has existed for centuries. (2) Dating back to old English law and earlier, asset forfeiture law today allows governments to take ownership of assets that are contraband, instrumentalities, or proceeds of crime. (3) Asset forfeiture is a crucial way that federal, state, and local governments generate revenue from criminal investigation and prosecution.
He Song Dong's case exemplifies forfeiture's reach. Dong is a permanent legal resident of the United States and a native of China. (4) He does not know very much English. (5) In 2021, Dong embarked on a cross-country drive from Chicago, Illinois to Birmingham, Alabama. (6) He planned to purchase a restaurant in Birmingham and was traveling with cash that--as affidavits later stated--had been loaned by his friends to make the purchase. (7) In northern Indiana, Indiana State Police officers pulled over Dong after observing him change lanes without signaling--a stop a federal district judge later mused was likely pretextual. (8)
Federal DEA agents soon arrived on the scene and conducted a warrantless search of Dong's car. (9) It is unclear what prompted the DEA's presence. The search of Dong's car yielded three cellphones, $244,000 in cash, and no drugs. (10) Dong was released with a traffic warning for failing to signal a lane change. (11) He was never charged with any crime, but the DEA seized the $244,000. (12)
Roughly two months later, the DEA sent a written notice to Dong that the agency was forfeiting the $244,000. (13) The notice laid out two options for contesting the forfeiture. The first was that Dong could file a "Petition for Remission," which the notice defined as a "pardon of the property ... from the forfeiture." (14) The second was that Dong could file a claim to return the property. (15) Dong hired a lawyer who filed a "Petition for Remission" but did not file a claim to the $244,000. (16) What Dong and his attorney did not understand was that by selecting the "Petition for Remission" option but not filing a claim, they were agreeing that the $244,000 should be forfeited to the government but asking the government to return it to Dong in an act of discretionary mercy. (17)
Five months passed, and Dong did not hear anything from the DEA about his Petition for Remission. (18) Dong then brought suit in the federal district court for the Northern District of Indiana, seeking return of the $244,000. (19) Seven weeks later, the DEA finalized the forfeiture of the $244,000. (20) The DEA justified the forfeiture on the ground that it had not received a properly executed claim to the $244,000 from Dong or another person. (21)
The district judge appeared sympathetic to Dong's plight. Nevertheless, the judge was bound to dismiss the suit because Dong had waited longer than the maximum thirty-five days to file his claim to contest the forfeiture, which deprived the district court of jurisdiction. (22)
Forfeiture cases like the one against He Song Dong demonstrate why asset forfeiture is despised by people on both sides of the political aisle. Still, the U.S. Supreme Court routinely upholds forfeitures against constitutional challenges, though it often expresses displeasure in doing so. In Bennis v. Michigan, for example, the Court upheld the state's forfeiture of a woman's car after her husband and a sex worker engaged in sexual activity in the car. (23) Despite the woman's lack of knowledge of her husband's crime, the forfeiture was upheld because the car "facilitated and was used in criminal activity." (24) The majority conceded that the woman's claims of unfairness had "considerable appeal," but it ultimately ruled that forfeiture cases are "too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced." (25) In a concurrence, Justice Thomas observed, "[t]his case is ultimately a reminder that the Federal Constitution does not prohibit everything that is intensely undesirable." (26)
Yet even though asset forfeiture creates significant financial consequences for people who have contact with the criminal system, asset forfeiture receives little scholarly attention. Perhaps this lapse can be attributed to the opaque and bureaucratic nature of asset forfeiture proceedings or to the difficulty in obtaining nationwide data about asset forfeiture--a difficulty this Article overcomes in Part II.
This Article undertakes the first comprehensive scholarly examination of asset forfeiture using nationwide data. As this Article shows, most of the assets the Department of Justice (DOJ) forfeits are (in order of prevalence): weapons, cash, vehicles, tobacco, and ammunition, which together make up roughly 90% of all federally forfeited assets. The DOJ currently forfeits around 40,000 assets per year. (27) A little less than half of these assets (including weapons, tobacco, and ammunition) are destroyed; most of the other half become government revenue, generating around $2 billion per year. The government rarely returns forfeited assets to people. (28)
This Article's empirical analysis reveals that the DOJ uses forfeiture in two mostly distinct ways. First, the government routinely forfeits weapons and ammunition. These forfeitures generate little revenue because federal law prevents the government from selling them. This Article calls this class of forfeitures destructive forfeitures. Second, the government often forfeits cash, financial instruments, electronics, and vehicles. These forfeitures for the most part do generate revenue for the government. This Article therefore calls them revenue forfeitures. (29)
It is important to note that this Article does not--and could not--measure the extent of all forfeiture in the United States. Complete nationwide data of all forfeitures does not exist. (30) This Article's analysis is limited to assets forfeited by the federal government under federal criminal statutes. It therefore excludes forfeitures conducted by the Department of the Treasury, (31) forfeitures conducted by state officials pursuant to state law, (32) and forfeitures that are not authorized by criminal law, such as tax forfeitures of real property. (33)
Despite this limitation, the study nonetheless covers the majority of asset forfeiture in the United States. This is because estimates suggest the federal government conducts more asset forfeiture than the states combined. (34) It is important to note that federal asset forfeiture is not restricted to use in federal criminal cases, which make up a small share of all criminal prosecutions in the United States. (35) Many federal asset forfeitures are associated with either a state criminal case, or no criminal case at all.
As described in more detail below, through a federal practice known as "equitable sharing," state and local law enforcement agencies can use the federal forfeiture laws by partnering with federal agencies to forfeit assets the local agency seizes. (36) Under these equitable sharing arrangements, the state or local law enforcement agency keeps up to 80% of the forfeiture's revenue, and the federal government keeps at least 20%. (37) Because equitable sharing forfeitures proceed through the federal system, the data used in this Article includes these forfeitures, in addition to forfeitures stemming from federal criminal investigations.
After matching forfeiture data to county-level population data, I show that revenue forfeitures are more prevalent in districts with larger non-white populations. The same is not true of destructive forfeitures. The unequal prevalence in revenue forfeitures is driven by the frequent use of this type of forfeiture in federal districts that border Mexico. The Article argues that inequalities in revenue forfeiture practice could stem from the government's norms and incentives in forfeiture cases. For example, under the border search exception to the Fourth Amendment, law enforcement officers are subject to fewer legal limitations when they conduct seizures at or near the U.S. border than in the interior, which this Article argues likely leads to more active forfeiture practices in federal districts that border Mexico. (38)
This Article's findings suggest that revenue forfeitures resemble criminal justice fines and fees, which have long been criticized for their regressive impact. The DOJ's "Ferguson Report" famously showed how the city of Ferguson, Missouri organized its law enforcement efforts...
