Updated as of January 2020.
Civil asset forfeiture is a legal process that authorizes the confiscation of property suspected of having been used for, or derived from, criminal activity. Because the action is against the property itself, there is no need to convict the owner of the underlying crime. Indeed, the owner does not even need to be charged. And because it is a civil rather than a criminal action, the link between the property and the crime does not need to be proved beyond a reasonable doubt; a “preponderance of the evidence” is sufficient.
Civil asset forfeiture is inherently unjust. It violates property rights and the right to due process. Perhaps worst of all, it perverts the proper relationship between the police and the public by turning the former into predators and the latter into their prey. Despite these defects, however, the federal government started making extensive use of the practice in the 1970s, and, in the years that followed, most states enacted similar civil asset forfeiture laws of their own.
Fortunately, North Carolina did not go along with that national trend. Under our criminal asset forfeiture statutes, property linked to a crime is only subject to forfeiture after the property’s owner has been convicted of that crime. And under the North Carolina Constitution, asset forfeiture proceeds do not revert to the agency that made the seizure. Instead, they must be used for maintaining public schools.
These features of North Carolina law protect the innocent and discourage abuse and have earned the state high marks in repeated editions of the Institute for Justice’s “Policing for Profit” report. In 2015, they also earned the state the top score in a report by FreedomWorks titled “Civil Asset Forfeiture: Grading the States.”
Unfortunately, a federal program called “equitable sharing” makes it possible for North Carolina law enforcement agencies to circumvent these protections.
One form of equitable sharing is relatively benign. A state or local law enforcement agency that participates with a federal agency in a joint investigation receives a share of the proceeds from any assets seized in the course of the investigation. The fact that those assets can be taken through civil asset forfeiture is unfortunate, but at least joint investigations serve a legitimate law enforcement purpose.
The second form of equitable sharing, which is known as “adoption,” is worse. When a state law enforcement agency refers seized assets to a federal agency for adoption, those assets are processed under federal civil asset forfeiture law, and then the bulk of the proceeds are returned to the state agency that made the seizure. Adoptions serve only one purpose: to facilitate the circumvention of state asset forfeiture laws.
Compared to other states, law enforcement agencies in North Carolina have made very extensive use of equitable sharing in general, and of adoptions in particular. As a result, the Institute for Justice ranks North Carolina among the 10 worst states when it comes to using equitable sharing to circumvent state law.
- North Carolina’s statutes and the state constitution protect the innocent and discourage abuse by requiring a criminal conviction before property can be forfeited and by requiring forfeiture proceeds to be used for maintaining public schools.
- The federal government’s equitable sharing program makes it possible for North Carolina law enforcement agencies to circumvent those protections.
- In 2018, North Carolina law enforcement agencies collected more than $17 million in equitable sharing proceeds from the Department of Justice alone, and they collected millions more from the Department of the Treasury.
- Ten states and the District of Columbia have imposed restrictions on equitable sharing in the form of prohibitions on federal adoptions and monetary thresholds that must be met before asset sharing is permitted in joint investigations. Similar reforms have been proposed in two more states.
- North Carolina should follow best practices of other jurisdictions by placing suitable restrictions on the use of equitable sharing. Ideally, these restrictions will completely ban federal adoptions and prevent state law enforcement agencies from sharing the proceeds of assets seized in the course of joint investigations if the value of those assets is less than $100,000.