Minnesota’s civil forfeiture laws grant police officers, sheriffs and prosecutors perverse incentives to take private property. Despite recent reforms, the state still received a paltry “D+” for its civil forfeiture laws, according to a new report, “Policing for Profit,” released by my law firm, the Institute for Justice.
Civil forfeiture is law enforcement authorities’ power to take ownership of cash, vehicles, guns and other personal property suspected of involvement in a crime. No convict has a right to the fruits of his or her crime. Last year, Minnesota became one of a handful of states to require a conviction in criminal court before an owner can lose property through forfeiture litigation in civil court.
That’s good news, but last year’s change is insufficient to protect Minnesotans from law enforcement agencies’ avarice. For many forfeiture cases, police and prosecutors can receive up to 90 percent of all proceeds. That creates a powerful incentive to police for profit. Last year, 321 law enforcement agencies completed nearly 7,000 forfeitures, resulting in $9 million in private property going to law enforcement budgets for salaries, benefits and overtime pay. Since 2000, more than $72 million in property has been seized under state law, with each year’s reported amount increasing over the prior year.
The Legislature has done little to address the core problem of policing for profit since the Metro Gang Strike Force’s scandal in 2009, which resulted in a $3 million fine paid to victims of the unit’s misconduct.
Contrary to founding father George Mason’s admonition that the purse and the sword must never be in the same hands, police officers, sheriffs and prosecutors now include forfeiture as a line item in their budgets. This inevitably means that prosecutorial discretion is influenced by the need to fund pay and benefits. Indeed, law enforcement agencies’ authority to supplement their budgets with property they seize and sell is the primary factor behind Minnesota’s unsatisfactory grade.
While law enforcement authorities may claim that forfeiture is targeted only against sprawling criminal enterprises and large drug cartels, many cases involved relatively small amounts. Last year, the average forfeiture in Minnesota was under $1,450. Nearly all forfeitures — 95 percent — were of property worth less than $5,000. In other words, it would be irrational for property owners to hire lawyers to contest the forfeitures because a lawyer would likely charge more than the value of the property. Moreover, the constitutional right to an attorney, if you can’t afford one, does not apply in civil court. Law enforcement authorities know that only about 5 percent of property owners even try to go into court to get back their property. The 2014 conviction prerequisite is insufficient protection.
And a federal program known as “equitable sharing” further threatens to undermine Minnesota’s reforms. By collaborating with a federal agency, local and state agencies can receive up to 80 percent of the proceeds from a forfeited property. Between 2000 and 2013, Minnesota agencies received more than $25 million in federal forfeiture proceeds from the U.S. Department of Justice. Since these forfeitures proceed under federal law, Minnesota’s reforms do not apply at all, allowing local and state law enforcement agencies to dodge state-level controls by partnering with federal agencies.
It’s time for Gov. Mark Dayton and state legislators to take a lesson from a former prosecutor and border-state governor. Earlier this year, New Mexico Gov. Susanna Martinez, a tough-on-crime Republican, signed into law a reform that required all forfeiture proceeds, including those involving collaboration with the federal government, to be deposited in the state’s general fund. This simple but profound reform ends the incentive that causes local law enforcement authorities to chase cash instead of criminals.
Equally relevant to legislators is that the change restores their authority. Minnesota voters elected them to set the state’s priorities through the budgeting process. Unfortunately, legislators have abdicated that responsibility and have allowed law enforcement agencies to self-finance through forfeiture.
Minnesotans pride themselves on good government. During the 2016 session, legislators should end forfeiture’s corrupting influence by ending law enforcement’s conflict of interest and budgetary dependence on forfeiture proceeds.
Lee McGrath is the managing attorney at the Institute for Justice’s office in Minneapolis.