Implementing a Forfeiture Program

Three steps should be followed in setting up an asset forfeiture program.81, § First, police administrators should formulate a mission statement conveying the purpose of the forfeiture program. Second, with the help of appropriate legal counsel, adopt appropriate policies and procedures to ensure the forfeiture program operates within legal boundaries. As this response guide has made clear, forfeiture's legal requirements vary considerably from one jurisdiction to the next and can be rather complicated. Third, consider the resources necessary to start and sustain a forfeiture program. The department needs to be committed to launching the program, because, at least in the beginning, the costs associated with personnel training, administration, and investigation will surely exceed any financial benefits from forfeiture actions.

§ For more details on the mechanics of setting up a forfeiture program and engaging in investigations, see Goldsmith (1988), Booth (1988), Gallagher (1988), Stolker (1989), Bryant (1989), Morley (1989), Murphy (1989), Ferris (1989), Holmes (1989), and Stolker et al. (1989).

Once a mission statement and appropriate policies are adopted, investigators can pursue forfeiture actions in consultation with the attorney (e.g., prosecutor) who will represent the government if the case goes to trial. This individual should be updated throughout the investigation, as he or she will be helpful in determining whether to pursue civil or criminal forfeiture. It is also worthwhile for agencies to consider collaborating with other agencies that have successfully forfeited assets in the past. Once a program is launched and assets are successfully seized, it is critical for the department to safeguard the property in question until all legal disputes are resolved. This can include everything from appraising automobiles and storing jewelry to depositing cash into a bank account and maintaining real property.82

Ethical Considerations

In response to negative publicity and criticism of forfeiture (especially civil forfeiture), the U.S. Department of Treasury's Executive Office for Asset Forfeiture drafted a National Code of Professional Conduct for Asset Forfeiture (see Appendix C). It consists of "ten commandments" to federal agencies on the proper use of asset forfeiture. Not long after the National Code of Professional Conduct was drafted, the National District Attorneys Association (NDAA) assembled a task force that developed their Guidelines for Civil Asset Forfeiture (see Appendix D). The NDAA guidelines have been adopted in several states.83 In general, these documents emphasize that the core purpose of forfeiture is enforcement, not revenue generation. They also place great emphasis on avoiding corruption, ensuring procedural fairness, and maintaining accountability.

Avoiding the Negative

The "Possible Criticisms and Negative Consequences" section above may give the impression that forfeiture's negatives outweigh its positives. Nothing could be further from the truth. First, it is important to be at least aware of forfeiture's possible downsides. Second, many of the criticisms were offered up well before major forfeiture reform (i.e., CAFRA) was enacted. Such reforms have made significant strides in terms of protecting property owners' due process rights and ensuring that forfeiture practices remain ethical and effective. Third, any effective crime control strategy needs to be balanced against the possible argument that it threatens people's rights. Whether the specific strategy is intensive street-level enforcement, aggressive use of investigative detentions, putting more police officers on the streets, or carrying out sting operations, it is almost always likely that there will be critics who oppose the practice. Forfeiture is no different. It is controversial because it has such potentially powerful economic consequences. Finally, no matter the pros or cons associated with forfeiture, it is difficult to fault financially strapped law enforcement agencies for seeking resources to continue their crime-fighting efforts.

Bringing the Community on Board

One possible strategy to minimize any potential fallout associated with forfeiture is to bring the community on board from the outset. This occurred in the early days of Atlanta's Neighborhood Fresh Start initiative (see above). There, from the start, prosecutors met with and engaged residents to identify problems. Rather than take a top-down approach of defining what problems should be targeted, prosecutors went to community meetings and gatherings to learn residents' problems and concerns. The program's success may also be attributed to the fact that prosecutors went into the community first, and the police department had little to no involvement at the beginning. Relationships between the police and residents of the Fresh Start neighborhood were strained, but prosecutors were unfamiliar faces in the community. Their appearance on the scene afforded an opportunity to build trust and communication right from the start without having to deal with any strained relationships that could have interfered with progress.

The "Planning Unit"

Before enacting a forfeiture program, consider forming a planning unit that consists of representatives from various government agencies, including the police department, the code enforcement agency, the city council, the mayor's office, the city attorney's office, or any combination of these and other local agencies. Such a unit, however composed, should then hold scheduled meetings with community members to identify problems and formulate appropriate solutions. Then the planning unit representatives can pool their resources and determine (especially with consultation from the city attorney or the prosecutor's office) whether forfeiture is a viable option for the problem in question. This grass-roots, ground-up approach could pay huge dividends in terms of getting the word out that forfeiture is an option and securing community support for its use—in the beginning.

Evaluating Success

There is no "one best way" to evaluate asset forfeiture success, but at least four important issues should be considered. First, because forfeiture can offset the costs associated with targeting certain crime problems, agencies should weigh assets forfeited against the actual costs of enforcement. When forfeiture proceeds outweigh enforcement costs, forfeiture can be declared a success—at least from a budgetary standpoint.

Second, community feedback should be secured along the way, particularly when assets such as real property and other valuables are subject to forfeiture. This may not be of particular concern to some agencies, but community members may get upset if it appears the government is taking people's property unfairly. This happened in the early days of Fulton County's Neighborhood Fresh Start (again, see above).

Third, agencies should weigh seizures against forfeitures. Because most forfeitures are finalized following a court proceeding, it is worth knowing how many items targeted for forfeiture through seizure actually end up forfeited. This is akin to the relationship between arrests and convictions. A significant drop-off in forfeitures relative to seizures would be not unlike a significant drop-off between arrests and convictions.

Finally, one of the goals of forfeiture should be to promote fairness. This raises the question of whether case dispositions are appropriate for the offense in question. Reasonable care can help agencies overcome the problem of forfeited property values, significantly outweighing the seriousness of the underlying offense. As mentioned earlier in this guide, excessive forfeiture can constitute an Eighth Amendment violation.