Decrying It as ‘Policing for Profit,’ Critics Want Reform of NJ’s Civil Asset Forfeiture

Carly Sitrin | December 13, 2018 | Social
Cash, cars, boats, guns, big stuff, small stuff: Detractors say it’s all fair game for law enforcement in New Jersey even if the owners are never charged with a crime

Credit: via Creative Commons
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The practice of civil asset forfeiture in New Jersey is sometimes referred to by critics as “policing for profit” and now many are calling for the Legislature to reform it.

The civil asset forfeiture law allows law enforcement to seize private property — everything from cash, to cars, to boats and guns — if they suspect those assets were used or obtained during a crime. The cash value for that property can then be absorbed by police departments as a way to fund their budgets.

A new report released this week by the ACLU-NJ shows that $5.5 million was seized in civil asset forfeiture cases in the state during the first five months of 2016. What’s more, the ACLU found that only 50 out of the 1,800 cases were contested. In other words, 97 percent of those forfeiture cases resulted in cash flowing directly into law enforcement coffers regardless of whether or not the property owners were charged with a crime. The ACLU data did not include information regarding how many of those individuals were convicted of a crime.

“Police have figured out a ‘sweet spot.’ They’re seizing around $100 to $500 in vast quantities,” said Liza Weisberg, a Catalyst Fellow at the ACLU-NJ and author of the report. “They’ve secured this formula where they can seize a relatively small amount in a huge number of cases and they’re pretty much guaranteed not to ever have to answer for their actions.”

Weisberg said this practice is tantamount to police preying on the most vulnerable New Jerseyans to fund their operations.

Baseball cards, a bicycle, an iPod

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“In virtually every single case, going to court is a guaranteed losing game financially,” Weisberg said. More often than not, she said, the price of hiring a lawyer to fight these cases would cost more than the seized property itself. The ACLU report notes that items seized included baseball cards, a bicycle, an iPod, and a “multicolor plastic cube.” And while each one of these items individually may not seem worth going to court to fight for, they all add up to millions of dollars for law enforcement.

“It’s an intimidating and confusing and complex legal process and just getting in the courthouse door is more money out of your pocket,” Weisberg said.

NJ Spotlight contacted several county prosecutors’ offices, including those in Hudson and Essex counties, which the ACLU report identified as the counties with the most seizures over the recorded period and received no response. A spokesperson for the state Attorney General’s office said officials there have not reviewed the report and do not have any comment.

A simple process

The forfeiture process is simple: If an individual is pulled over or stopped on the street and suspected of committing a crime — typically drug trafficking — the police can take the money from their pocket, the car they’re driving, or any other property they believe to be connected to the crime.

What’s more, even if an individual is not arrested or charged, or is acquitted of a charge, that seized property can still be held under a separate civil lawsuit and returned only after a legal challenge.

Civil forfeiture cases are not classified as criminal charges but instead as civil complaints and are separate from the charges that can be brought against an individual for a crime. As a result, suspects aren’t entitled to legal representation in civil forfeiture cases, Weisberg explained.

The process, according to the ACLU report, starts when the government files a civil lawsuit against the property alleging that it played a role in a crime. The property owner can then try to challenge the seizure by paying a fee and going to trial. If the suit goes unchallenged or if a judge determines that law enforcement had enough proof to seize the property, then it is handed over to law enforcement permanently even if the state does not have enough evidence to convict the individual of a crime or if the case was dismissed.

That property is then absorbed into the police budget either through state law or under a federal program called “equitable sharing,” which grants local and state police up to 80 percent of the value of what they seize as cash funding for their departments. A recent Institute for Justice report noted that in New Jersey, local law enforcement agencies retain 100 percent of forfeiture proceeds and if the state Attorney General’s office brings a forfeiture case, it retains 95 percent of proceeds with the remaining 5 percent deposited into the Hepatitis Inoculation Fund.

Profitable for police?

According to Weisberg, this makes the practice extremely profitable for police.

“Police officers have a direct financial stake in every forfeiture that they make. That goes right back into their budgets. It skews law enforcement priorities and makes us less safe as long as police are out there looking to serve their bottom line.”

The practice disproportionately impacts those in minority communities, Weisberg said, as they are more likely to be stopped by police and often less likely to be able to afford representation. The report noted that the largest volume of forfeiture cases happened in Hudson County, “where the ACLU-NJ has documented racial disparities in police stops.” In Jersey City, according to the report, black people were arrested for low-level offenses at a rate 9.6 times higher than were white people.

Jersey City Municipal Prosecutor Jake Hudnut said in an email that the closest his office comes to the civil asset forfeiture issue is when property is returned following the dispositions of criminal cases in the city’s courts.

“I approach these property return requests with fairness and what you may call a presumption of returning property to defendants following the disposition of a criminal case,” Hudnut said. “That is because data suggests that the more fairness a low-level, non-violent offender discerns from the adjudication of a matter in the criminal justice system, the less likely he or she is to recidivate and re-offend.”

Suggested reforms

After years of allowing law enforcement to profit from these cases, it’s time for New Jersey to change, Weisberg said. “What we know is the law isn’t working and the deck is stacked in the government’s favor,” she said. “There are glaring opportunities for the Legislature to make reforms.”

Weisberg groups the ACLU’s suggested changes into three reform “buckets”:

  • Due process reform would include extending the right to counsel in these cases and require a stricter burden of proof for the state government;
  • Financial reform would remove the incentive for police to seize assets as a way to pad their budgets;
  • Transparency reform would include better reporting requirements and a way for the public to see how assets are being seized and where the seized property is going.
  • Weisberg said no one from law enforcement or the Attorney General’s office has commented on the report but she hopes that it will alert members of the Legislature to the problems.

    In 2017, former Gov. Chris Christie vetoed an asset forfeiture transparency bill that the Legislature had passed. That bill (S-1963) is now working its way through the Legislature again. It was passed by the Senate (37-0) in July and an Assembly version (A-3442) is currently awaiting action.

    “We’re going to keep pressure on and keep the attention on this,” Weisberg said.