Prosecuting for Profit

December 2002

Prosecuting for Profit:

IJ Protects Property Owners In The Garden State

By Scott Bullock

In November, IJ’s cutting-edge constitutional challenge to New Jersey’s civil forfeiture law will go to court.

Under so-called civil forfeiture proceedings, the government tries to secure by forfeiture property—anything from cars to cash to jewelry—that is in some way connected to illegal activity. The theory underlying civil forfeiture is that the property itself, not the owner or user, is the offender. In the forfeiture proceeding, the burdens of proof are dictated by civil rather than criminal rules. The government must prove only by a preponderance of the evidence that the seized property was connected to unlawful activity. Proof of criminal activity by the property owner or anyone else is not required under the law. Civil forfeiture is permitted even where criminal charges have never been filed against a property owner or where the charges have been dismissed. And in New Jersey, any criminal offense, except extremely minor crimes, can lead to forfeiture actions.

Purchases Made Using Asset Forfeiture Dollars in New Jersey

Computers

Automobiles

Office equipment and furniture

Office supplies

Air conditioners

Photocopier Television and VCR

Uniforms for summer basketball league

Production costs of an office newsletter

Carpet

Lease of additional office space

Overtime wages

Consulting services

Airline tickets

Food for meetings

Not surprisingly, over the past decade, these laws generated horrible abuses of property rights. People with very little or no connection to criminal activity saw their property and money seized with very little recourse in the courts. What is perhaps most shocking about these laws is that in many states, including New Jersey, and at the federal level, police and prosecutors are entitled to keep for their own agencies the property and money they seize for forfeiture. Thus, the very bodies charged with fairly enforcing the law benefit and profit directly from it. And profit they do.

From 1998 to 2000, police and prosecutors in New Jersey alone collected an astonishing $32 million in property and currency through application of the civil forfeiture law. Forfeiture funds went to everything from the purchase of automobiles to a golf outing, from office furnishings to expenses at prosecutor conventions.

The due process clauses of the U.S. Constitution and the New Jersey Constitution prohibit laws that create actual bias, the potential for bias, or even the appearance of bias in the administration of justice. New Jersey’s civil forfeiture law cannot pass this standard. Indeed, the author of the leading treatise on civil forfeiture practice and the former associate director of the Department of Justice’s Asset Forfeiture Office, David Smith, commented in his writings in 2000 that it is “remarkable that these statutes have not yet been challenged on due process grounds.”

Conference attendance including:

• $14,100 payment for 30 attendees at a county prosecutors’ association function in Atlantic City

• $24,038.72 in expenses at Chief’s Retreat at Seaview Marriott Resort

• $4,956.35 payment for a prosecutor’s office executive retreat

• $12,902.60 for expenses at the county prosecutors’ association convention

• $12,300 for attendance at annual prosecutors conference

• $15,025 at 2000 annual prosecutors’ conference

• $26,350 for employee travel, meetings and seminars

Not any more.

The Institute’s lawsuit challenges for the first time the perverse profit incentive at the heart of these laws.

We’ve already scored a victory in our New Jersey case by successfully securing the release of our client Carol Thomas’ automobile. Now the constitutional issue moves to center stage.

Scott Bullock is an IJ senior attorney.