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Asset Forfeiture and Police Priorities: The Impact of Program Design on Law Enforcement Activities
James C. Clingermayer, Jason Hecker and Sue Madsen Criminal Justice Policy Review 2005 16: 319 DOI: 10.1177/0887403404271482 The online version of this article can be found at: http://cjp.sagepub.com/content/16/3/319

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10.1177/0887403404271482 Clingermayer et al. / ASSET FORFEITURE CRIMINAL JUSTICE AND POLICE POLICY PRIORITIES REVIEW / September 2005

Asset Forfeiture and Police Priorities: The Impact of Program Design on Law Enforcement Activities
James C. Clingermayer
Murray State University

Jason Hecker Sue Madsen

Literacy Center West Union Township Police Department

This article examines the use of asset forfeiture by law enforcement units within the greater Cincinnati area, using the results of a survey distributed among state and local government law enforcement agencies. The analysis reveals what kinds of assets are confiscated, what kind of legal authority is used to accomplish asset forfeiture, and which individuals are involved in the decisions to confiscate assets and to select a particular kind of legal authority under which the forfeiture will be authorized. The data indicate that the use of asset forfeiture does not have a substantial impact on the policing priorities of local agencies. The sampled jurisdictions tend to use either a criminal forfeiture statute as the legal authority for the seizure or a court-imposed settlement to confiscate assets. By using the criminal court process, jurisdictions avoid sharing the value of the assets. Keywords: asset forfeiture; policing

AUTHORS NOTE: Earlier versions of this article were presented at the annual meeting of the Public Choice Society in Nashville, Tennessee, March 2003 and at the Southeastern Conference on Public Administration in Columbia, South Carolina, October 2002. The listing of the authors names is alphabetical. The authors would like to express appreciation to Andrea Bahm and Chris Downs for help with data entry and table construction. They would also like to thank Sergeant Michael Puckett of the Dayton (KY) police department for his assistance in the early stages of this project. Financial support for the survey was provided by the Public Service Center, Northern Kentucky University.
Criminal Justice Policy Review, Volume 16, Number 3, September 2005 319-335 DOI: 10.1177/0887403404271482 2005 Sage Publications

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Law enforcement agencies in the United States have for a number of years made use of a particularly powerful tool for combating criminal activities: the power to confiscate assets that are in the possession of or utilized by criminals and/or criminal suspects. The use of this tool, henceforth referred to as asset forfeiture, became much more common during the 1980s and 1990s as federal laws changed to encourage asset forfeiture by state and local authorities as well as by federal officers. The widespread use of this technique became quite controversial, however, because it became clear that in some instances, government confiscated assets owned by innocent owners of property. Furthermore, in many instances, criminal suspects lost title to property even though they were never convicted and sometimes never indicted for any crime connected to the forfeited property. Because the value of the assets could be substantial and because the procedural protections for suspects and property owners are sometimes weak, some law enforcement agencies have considerable incentive to seize assets. On occasion, assets have been seized when the persons owning or utilizing the assets were innocent of any crime. Some critics of asset forfeiture have claimed that these programs distort priorities by encouraging law enforcement to focus on those crimes and those criminals that involve the most valuable assets, whereas other criminals and criminal activities receive less attention, even though they may constitute a more serious threat to public safety and order. From the perspective of public choice scholars, these controversies and the alleged abuse of asset forfeiture are readily explainable. Using a basic bureaucratic budget-maximization argument (e.g., that of Niskanen, 1971, 1975), Bruce Benson, David Rasmussen, and David Sollars (1995) have argued that police bureaucrats make use of asset forfeiture, particularly with respect to drug offenses, to increase their own resources. Various other scholars, working both inside and outside the public choice tradition, have made comparable arguments. This article is an attempt to shed some light on these controversies by examining the use of asset forfeiture by law enforcement units within the greater Cincinnati area (including jurisdictions in both Ohio and northern Kentucky), using the results of a survey distributed among state and local government law enforcement agencies. The analysis reveals what kinds of assets are confiscated, what kind of legal authority is used to accomplish asset forfeiture, and which individuals are involved in the decisions to confiscate assets and to select a particular kind of legal authority under which the forfeiture will be authorized. The study also examines the circumstances that are reported to affect the forfeiture decision.

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This research is one of the few studies that examines decisions regarding which kinds of procedures are to be used in forfeiture cases. Asset forfeiture differs significantly in procedure, depending on whether a civil process is employed or whether the forfeiture is accomplished as a part of a criminal proceeding. Federal and state laws on civil and criminal forfeiture also differ in terms of the procedures employed to carry out the forfeiture and in the way that the gains from forfeiture are divided among jurisdictions and the purposes for which those revenues can be devoted. The impact of these policy design differences on the extent of forfeiture and the kind of assets that are forfeited are analyzed as well. The analysis also examines whether the extent of asset forfeiture affects the kind of policing priorities that law enforcement agencies practice.

VARIETIES OF ASSET FORFEITURE POLICIES

Asset forfeiture by law enforcement has been practiced in one form or another for a number of years, but in the United States the policy has been encouraged by the federal government by legislation adopted in the late 1970s and early 1980s. The federal legislation established a process for civil forfeiture of assets in connection with alleged criminal activities. This was in addition to the more traditional practice of criminal forfeiture. State or local authorities could participate and the federal government could participate in the federal civil asset forfeiture program by seizing assets and then requesting that the forfeiture be adopted by federal authorities. The federal civil asset forfeiture law provided for in rem proceedings in which the named defendant was the asset itself, not the criminal suspect who owned or possessed the asset. Because the proceedings involved a civil not a criminalprocess, the standard of evidence needed to gain court approval for a forfeiture (i.e., a preponderance of evidence) was much lower than in a criminal proceeding. Unanimous jury verdicts were not needed, and the right to court-appointed counsel did not exist (Hyde, 1995; Jensen & Gerber, 1996; Levy, 1996; Rainbolt & Reif, 1997). Until the passage of the Civil Asset Forfeiture Reform Act (CAFRA) of 2000 (Public Law 106185), the burden of proof in a civil asset forfeiture proceeding was squarely on the person challenging the forfeiture. Until CAFRA, indigents could not avail themselves of the services of the Legal Service Corporation to challenge a forfeiture. Once a federal forfeiture was finalized, the assets could be equitably divided among state and local law enforcement agencies that had contributed to the investigation leading to the seizure. Afterward, the remainder of the assets (or the remainder of the proceeds if assets were sold)

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would be sent to trust funds run either by the Department of Justice or the Department of Treasury, depending on which federal department had handled the forfeiture. Criminal asset forfeiture is also provided for under federal law; however, the basic procedural protections available to criminal defendants applied to those whose assets were seized. The burden of proof was clearly on the prosecution to demonstrate that a particular crime had been committed and that the seized asset was a proceed of criminal activity, had facilitated criminal activity, or was contraband in itself. The right to counsel is assured and a unanimous jury must determine guilt.

State of Ohio
The state of Ohio differs dramatically from federal practice in terms of how civil asset forfeiture is implemented. Under the state civil asset forfeiture statute, assets are not forfeited unless a criminal prosecution occurs. Jurisdictions do not have to meet the heavier burden of proof to confiscate the asset that they have to meet to gain a conviction on the criminal charge that underlies the seizure, but they do have to establish that the asset is either contraband or a proceed or a facilitator of criminal activity. (Note that in Ohio, proceeds and facilitators are regarded as contraband.) Assets that are forfeited through either a civil or criminal proceeding are retained by the jurisdiction if the investigation and pursuit of the suspect was carried out by a single jurisdiction. Otherwise, the proceeds from a sale of the assets are distributed equitably among the participating jurisdictions based on the degree of involvement in making the case against the suspect. The forfeited assets are not sent to a trust fund (Ohio Revised Code 2925.42; 2925.43; 2933.43). Therefore, although the procedural hurdles involved in state civil asset forfeiture in Ohio are substantial, jurisdictions have a substantial incentive to seize assets because the benefits of forfeiture are captured virtually entirely by the seizing jurisdiction.

Commonwealth of Kentucky
In the commonwealth of Kentucky, procedural protections for criminal suspects in civil asset forfeiture cases are not as great as in the neighboring state to the north. Jurisdictions seizing assets need only prove by a preponderance of evidence that the seized assets are contraband, proceeds, or facilitators of criminal activity (Kentucky Revised Statutes 218A.415 et seq.). In civil forfeiture in the commonwealth, 90% of the first $50,000 of value of

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seized assets (with the exception of motor vehicles) is retained by the jurisdiction. The remaining 10% of the value of the assets is given to the commonwealth attorney or county attorney who participated in the forfeiture proceeding. Fifty-five percent of the remainder goes to a state trust fund administered by the Justice Cabinet, and 45% of the total greater than $50,000 is retained by the seizing agency. The principal of the trust fund is distributed on a quarterly basis according to a formula set by statute. Those allocations are spread out among prosecutors, the Cabinet for Health Services, the Department of Corrections, and the Justice Cabinet (Kentucky Revised Statutes 218A.435). Seized motor vehicles are retained by the seizing agency for official use or sold within its discretion. Hence, there is great motivation to use civil forfeiture when motor vehicles are at stake, but the distribution of other assets or their values to the state trust fund diminishes the incentive to use civil forfeiture in other cases. Assets seized in criminal forfeitures are not sent to the trust fund at all but are retained by the jurisdiction, yet the much stiffer procedural safeguards of a criminal proceeding would obviously apply (Kentucky Revised Statutes 500.090).

INCENTIVES AND ASSET FORFEITURE

Many scholars have argued that the lure of valuable assets has encouraged law enforcement to pursue certain kinds of crimes or certain kinds of criminals in the hope that the government could enrich itself by confiscating assets that were paid for by the proceeds of criminal activity or that were used to facilitate the commission of crimes. Many commentators have linked asset forfeiture to the so-called drug war waged between law enforcement and the users and sellers of controlled substances. Some have suggested that the drug war has been a failure in terms of reducing drug use or curtailing the societal ills associated with drug use but that the war continues because law enforcement finds the emphasis on drugs to be profitable. Drug-related asset forfeitures can bring such large amounts of money into the hands of police (Benson et al., 1995; Benson & Rasmussen, 1998; Blumenson & Nilsen, 1998; Mast, Benson, & Rasmussen, 2000; Worrall, 2001). This kind of argument has also been made by scholars and also by a somewhat odd assortment of civil liberties advocates, property rights proponents, drug legalization supporters, and libertarians. Web sites (e.g., www.fear.org) have been created to publicize the dangers that government use of asset forfeiture may have on individuals and society. This article examines the use of asset forfeiture by law enforcement in one major metropolitan area, that of the greater Cincinnati area, which

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includes southwestern Ohio and the northernmost parts of Kentucky. The analysis examines the use of forfeiture under both civil and criminal statutes and under both federal and state statutory authority. Because the sample size is relatively small, multivariate analysis is difficult to apply. Simple cross-tabulations are used, and chi-square statistics are reported to identify the impact of key variables. This analysis is aimed at learning the extent of use of asset forfeiture, the kinds of legal authority that are involved, the relevant locus of decision-making authority in forfeiture cases, and the impact that forfeiture has on the activities and priorities of law enforcement. The study also examines the factors that are reported to affect whether or not assets are confiscated in particular cases.

ANALYSIS
The analysis is based on data drawn from responses to a survey sent to state and local government law enforcement agencies in the greater Cincinnati area during the summer of 2002. City, township, and county police departments, county sheriffs departments, and state police and highway patrol offices were surveyed in Boone, Campbell, Kenton, Grant, Pendleton, Gallatin, and Owen counties of Kentucky and Hamilton, Clermont, Union, and Brown counties of Ohio. A total of 104 different law enforcement agencies were surveyed, with 70 completed surveys returned for a response rate of just more than 67%. This response rate meets or exceeds the rate of response of other survey-based research projects dealing with asset forfeiture. The survey made a number of inquiries about asset forfeiture and policing priorities within the surveyed agencies. Responses to some but not all of the survey questions are discussed below. The responses indicated that some form of asset forfeiture is very commonly practiced in the greater Cincinnati metropolitan area. Among the Ohio jurisdictions, 93.3% (42 out of 45) of the respondents indicated that they used asset forfeiture, whereas 96% (24 out of 25) of the Kentucky jurisdictions participated in the practice. This is not surprising given the fiscal incentive to do so and because of the explicit legal authorization and support of state and federal governments for the program. The survey also examined the kinds of assets that were confiscated by the responding jurisdictions. About two thirds of the jurisdictions indicated that they seized proceeds from criminal activities, and just under a third of the respondents indicated that they seized assets that were used to facilitate crimes. Slightly more than a third indicated that they seized contraband. There were no statistically

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Clingermayer et al. / ASSET FORFEITURE AND POLICE PRIORITIES 325 Table 1: Types of Seizure by Jurisdiction Proceeds Ohio jurisdiction Kentucky jurisdiction Totals Chi-square 62.2% 76.0% 67.1% 1.383 Facilitator 26.7% 44.0% 32.9% 2.189 Contraband 31.1% 44.0% 35.7% 1.163 Other 4.4% 4.0% 4.3% 0.008

significant differences between Ohio and Kentucky jurisdictions regarding these seizures (see Table 1). There were some slight differences between the states in the kinds of items seized. Kentucky jurisdictions were somewhat more likely than Ohio jurisdictions to seize real estate, firearms, boats, all-terrain-vehicles, and trailers. It is not obvious from examining the Kentucky statutes why this was so. Possibly the state differences are attributable to the number of these items in the possession of criminal suspects in Kentucky (see Table 2). State statutes in the two states do not specify which officials shall be responsible for deciding when to seize assets or which assets to seize. If assets are seized simply to enrich police departments, we should expect that law enforcement leaders (such as police chiefs) should be involved in those decisions because they would have the most advantage and motivation to increase the volume of resources within their departments. The survey results, however, indicated the decision to seize an asset was not monopolized by a single individual. In many cases, the returned surveys indicated that more than one person made the seizure decisions. No particular official in either state was identified by a majority of respondents as making that decision. In Kentucky, the arresting officer was said to make the seizure decision by 32% of the respondents, whereas only 13.3% of the Ohio respondents indicated this. In Ohio, the police chief was said to make the seizure decision in 37.8% of the surveys, somewhat more than in Kentucky. However, the difference is not statistically significant. In about a quarter of the cases, prosecutors make the seizure decision. This is significant, because although prosecutors do have some incentive, under equitable sharing of forfeited asset policies, to pursue forfeitures, their financial incentives are usually much less than the incentives pertinent to law enforcement. Most of the literature criticizing asset forfeiture suggests that police rather than prosecutors are pushing the hardest for this policy, particularly regarding drug enforcement (see Table 3).

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326 Motor Vehicles Cash 84.4% 96.0% 88.6% 2.120 8.9% 12.0% 10.0% 0.173 71.1% 92.0% 78.6% 4.165** 24.4% 36.0% 28.6% 1.052 13.3% 32.0% 20.0% 3.500* Appliances Firearms 80.0% 76.0% 78.6% 0.015 28.9% 52.0% 37.1% 3.677* Real Estate Personal Valuables Boats, ATVs, Trailers Contraband 64.4% 72.0% 67.1% 0.416 Arresting Officer 13.3% 32.0% 20.0% 3.500* 17.8% 20.0% 18.6% 0.052 37.8% 28.0% 34.3% 0.682 High-Ranking Officer Police Chief Prosecutor 24.4% 28.0% 25.7% 0.106 Task Force Leader 4.4% 8.0% 5.7% 0.539 Elected Chief Executive 2.2% 0.0% 1.4% 0.564 Other Person 6.7% 4.0% 5.7% 0.212

Table 2:

Kinds of Assets Seized by Jurisdiction

Ohio jurisdiction Kentucky jurisdiction Total Chi-square

*p < .10. **p < .05.

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Table 3:

Who Makes the Decision to Seize Assets?

Ohio jurisdiction Kentucky jurisdiction Total Chi-square

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Most of the critical literature about asset forfeiture has placed blame on the use of civil proceedings to take control of the assets of suspected criminals. In this survey, however, respondents indicated that the civil forfeiture law is not the primary legal authority that is employed by law enforcement. Only a little more than 14% of the respondents indicated that they made extensive use of the federal civil asset forfeiture law, and only a little less than 16% of the jurisdictions relied primarily on their states civil asset forfeiture law. Overall, about 37% of the respondents indicated that they primarily used their statescriminal asset forfeiture statute and about 30% used a court-approved plea arrangement to seize assets. Kentucky jurisdictions were somewhat more likely to use the federal criminal statute than were Ohio respondents, but the results quite strongly indicate that seizures are accomplished through a criminal process, not through a civil proceeding, which lacks the procedural safeguards that are taken for granted in criminal courts (see Table 4). The survey also inquired into the portion of the budget for the jurisdiction and for law enforcement that was derived from asset forfeiture. Only 1 respondent indicated that forfeited assets accounted for more than 5% of the budget for either the jurisdiction as a whole or for law enforcement.1 That is a striking finding, as some forfeiture critics have claimed that some agencies seek a big forfeiture that will keep their agencies funded for a couple of years at a time. That is not the experience reported by the respondents of this survey. The results did reveal some variation in the degree that the value of forfeited assets had changed over the last 5 years or so. To see whether those changes had affected the basic law enforcement activities and priorities of the respondents, cross-tabulations and correlations were calculated among those variables. The analysis revealed no statistically significant impacts between the changes in asset values and the police activities or their priorities. Almost half (33 out of 70) of the respondents indicated that there had been no change in the value of forfeited assets. Eleven respondents indicated that there had been a slight increase in the value of forfeited assets, and 3 indicated that there had been a great increase. Thirteen respondents indicated that they had witnessed a great decrease in asset values, and 6 others indicated that there had been a slight decrease. Four returned surveys did not respond to that question. Of particular note is the absence of any statistically discernible relationship between the change in asset values and the priority placed on the enforcement of drug laws. Based on these results, it is hard to see any connection between asset forfeiture and the drug war at all (see Tables 5 and 6).

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328 Federal Civil Asset Forfeiture Law 15.6% 12.0% 14.3% 0.166 11.1% 32.0% 18.6% 4.637** 15.6% 16.0% 15.7% 0.002 33.3% 44.0% 37.1% 0.783 Federal Criminal Asset Forfeiture Law State Civil Asset Forfeiture Law State Criminal Asset Forfeiture Law Court-Approved Plea Arrangement 28.9% 32.0% 30.0% 0.074 Other Legal Authority 2.2% 4.0% 2.9% 0.183

Table 4:

Under Which Legal Authority Are Assets Seized?

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Ohio jurisdiction Kentucky jurisdiction Total Chi-square

Table 5:

Relationship Between Change in Seized Asset Values and Police Activities

Street Patrol 69.2% 33.3% 39.4% 36.4% 33.3% 42.9% 4.897 0.265 8.652 0.013 5.670 0.285 87.1% 51.4% 33.3% 28.6% 3.547 0.225 17.1% 3.249 0.215 72.7% 72.7% 27.3% 54.5% 42.4% 30.3% 83.3% 66.7% 33.3% 16.7% 15.2% 18.2% 61.5% 61.5% 38.5% 30.8%

Community Outreach 46.2% 33.3% 57.6% 27.3% 33.3% 47.1% 3.891 0.236

School and Youth Programs

Investigation of Felony Offenses

Investigation Deterrence of Through Visible Misdemeanors Presence

Other 15.4% 0.0% 6.1% 9.1% 31.3% 8.6% 4.324 0.249

Value of forfeited assets has gone down greatly

Value of forfeited assets has gone down slightly

Values of forfeited assets has stayed about the same

Value of forfeited assets has gone up slightly

Value of forfeited assets has gone up greatly

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Total

Chi-square

Eta

329

330 Traffic Control Vandalism Burglaries 46.2% 16.7% 33.0% 18.2% 33.3% 28.6% 6.134 0.296 0.158 1.751 2.415 0.186 24.3% 31.4% 7.1% 3.366 0.219 5.7% 4.757 0.261 20.0% 2.787 0.200 15.7% 0.032 0.215 18.2% 36.4% 24.2% 27.3% 9.1% 12.1% 33.3% 50.0% 16.7% 21.2% 18.2% 21.2% 18.2% 30.8% 23.1% 15.4% 30.8% Vice 46.2% 50.0% 63.6% 72.7% 66.7% 60.0% 2.435 0.187 Drug Offenses WhiteCollar Crime Violent Crime 15.4% Other Offenses Change in Priority 46.2% 83.3% 69.7% 54.5% 33.3% 61.4% 4.887 0.264

Table 6:

Relationship Between Change in Seized Asset and Police Priorities

Value of forfeited assets has gone down greatly

Value of forfeited assets has gone down slightly

Value of forfeited assets has stayed about the same

Value of forfeited assets has gone up slightly

Value of forfeited assets has gone up greatly

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Total

Chi-square

Eta

Clingermayer et al. / ASSET FORFEITURE AND POLICE PRIORITIES 331

The final analysis reported here pertains to the case-specific circumstances that respondents report as important in affecting the departments use of asset forfeiture. The survey provided respondents with a number of different factors that might affect these decisions and invited respondents to mark all the factors that were applicable. The survey also invited respondents to mark a response of other and to specify what that factor would be if a pertinent characteristic of a case was not listed on the survey. Because it was thought that the state jurisdiction that was involved might be connected to the factors relevant to a forfeiture decision, we cross-tabulated the state (Ohio or Kentucky) of the respondent with the choices of relevant factors. The factors that could be relevant might be affected by the nature of the position of the individuals making those decisions, so we also cross-tabulated the identity of the official making those decisions with the factors that were regarded as important by the respondent. Because only 4 or fewer respondents indicated that forfeiture decisions were made by task force leaders, elected chief executives, or other officers, those cross-tabulations are not reported. The results of these cross-tabulations, reported in Table 7, indicate that several different factors seem to be taken into consideration in particular forfeiture decisions. However, the factors that are identified as important do not differ widely between the Kentucky and Ohio jurisdictions, nor do they vary dramatically when different officials make the ultimate decision to forfeit assets. Overwhelmingly, respondents indicated that the connection between the asset and the commission of a crime is a factor affecting the forfeiture decision. If this report is accurate, there should be few instances when law enforcement confiscate an asset just because it is in the possession of a criminal suspect. The second most frequently mentioned factor was the value of the assets possessed by the suspect. This pattern is consistent with a budget-maximizing bureaucrat argument, yet it is also compatible with arguments that law enforcement make use of forfeitures to deter future crimes or to incapacitate the criminals whose assets are taken. Other kinds of factors, such as the presence of lien holders, the seriousness of the crime involved, and the likely harm to innocent owners, were also mentioned by many respondents. Very few respondents indicated that the likelihood of conviction affected the decision to pursue a forfeiture. This could be interpreted as indicating a lack of concern about the guilt or innocence of those who were having their assets taken, yet that does not appear to be a particularly compelling explanation in light of the fact that so many of the respondents in this sample made use of criminal proceedings to pursue asset forfeiture.

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Of considerable note is the fact that with few exceptions, the identity of the official making these decisions did not seem to influence the relevant factors in these decisions. If prosecutors, who do not work for the police de partment and who do not receive a substantial portion of the assets, make forfeiture decisions using much of the same criteria as police officers, who do have a substantial fiscal incentive to confiscate, the budget-maximization argument seems weakened. By and large, that appears to be the case in this analysis. Respondents indicated that when prosecutors made the asset forfeiture decision, there was somewhat more of a tendency to have the possibility of an undue burden on a suspects family affect the forfeiture decision than when a police officer made these decisions.

CONCLUSIONS AND POLICY IMPLICATIONS

Virtually all jurisdictions in the area are making use of asset forfeiture, but most agencies receive a very small part of their budgets from seizures. The extent of forfeiture does not seem to vary much, and there is little evidence to indicate that the use of asset forfeiture has a substantial impact on the policing priorities of local agencies. It is also noteworthy that most jurisdictions among these respondents do not use civil forfeiture, which lacks the procedural protections of a criminal proceeding. These jurisdictions tend to use either a criminal forfeiture statute as the legal authority for the seizure or to rely on a court-imposed settlement to confiscate assets. By using the criminal court process, jurisdictions avoid sharing the value of the assets unless the court orders a division among the relevant law enforcement and prosecutorial agencies. It is not clear that this financial advantage accounts for the widespread use of the criminal process, or possibly law enforcement and prosecutors simply prefer the criminal process for other reasons. Almost half of the responding jurisdictions made use of more than one legal procedure. In many jurisdictions, the decisions to seize assets were made by more than one person, rather than by a single official. Arguably, state governments ought to regulate the process by which these decisions are made to avoid placing too much power over valuable forfeitures in too few hands. There is no doubt that asset forfeiture has been abused by overly zealous, or perhaps simply mercenary, law enforcement agencies. But there appears relatively little evidence that this problem is pervasive among the responding jurisdictions. The lack of a strong relationship between the extent of asset forfeiture, on one hand, and police activities and priorities, on the

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Table 7:

Circumstances Affecting Forfeiture Decision

Asset Value 68.9% 60.0% 78.6% 76.9% 62.5% 61.1% 46.0 53.3% 44.0% 42.9% 53.8% 54.2% 66.7% 35.0 82.2% 80.0% 78.6% 92.3% 87.5% 77.8% 57.0 13.3% 16.0% 21.4% 30.8% 29.2%* 22.2% 10.0 60.0% 48.0% 64.3% 84.6%* 58.3% 55.6% 39.0 46.7% 40.0% 35.7% 53.8% 58.3% 50.0% 31.0

Link Between Seriousness Asset and Conviction of Crime Likelihood Crime Absence of Lien Holders 17.8% 16.0% 14.3% 7.7% 33.3%* 38.9%* 12.0

Likely Harm to Innocent Owners

Undue Burden on Suspects Family

Other Factor 2.2% 12.0% 0.0% 7.7% 4.2% 11.1% 4.0

Row Totals 45.0 25.0 14.0 13.0 24.0 18.0

Ohio jurisdiction Kentucky jurisdiction Arresting officer decides High-ranking officer decides Police chief decides Prosecutor decides Column totals

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*Chi-square significant at .05 level.

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other, may be attributable to the statutes in place in both states. The civil procedures that have been so widely criticized were amended at the federal level, and in Ohio the state civil procedure cannot be applied without a criminal conviction. In Kentucky, the sharing of the proceeds from asset forfeiture diminish the incentive to pursue forfeiture. Perhaps these features of the statutory regimes have curbed the desire to seize assets. Other jurisdictions may be advised to adopt laws that would provide comparable safeguards. Perhaps, too, law enforcement professionals have ethical norms that discourage the abuse of this practice. In other words, there may be much more in the objective function of law enforcement than a desire to maximize budgets. It should also be noted that in some jurisdictions, the decision to carry out a forfeiture of assets is not made by law enforcement alone but involves other officials, particularly prosecutors. In any case, we do not see evidence of any dramatic impact of forfeiture on the behavior of the responding jurisdictions, although obviously some care and vigilance regarding the implementation of asset forfeiture policies is still warranted.

NOTE
1. It should be noted that although forfeited assets may contribute only a small percentage to a governmental jurisdiction, it may constitute a substantial portion of the revenue used by an interjurisdictional task force (W. B. Williams, personal communication, June 17, 2004).

REFERENCES
Benson, B., & Rasmussen, D. (1998). The context of drug policy: An economic interpretation. Journal of Drug Issues, 28(3), 681-700. Benson, B., Rasmussen, D., & Sollars, D. (1995). Police bureaucrats, their incentives, and the war on drugs. Public Choice, 83, 21-45. Blumenson, E., & Nilsen, E. (1998). Policing for profit: The drug wars hidden economic agenda. University of Chicago Law Review, 65(1), 35-114. Hyde, H. (1995). Forfeiting our property rights. Washington, DC: Cato Institute. Jensen, E., & Gerber, J. (1996). The civil forfeiture of assets and the war on drugs: Expanding criminal sanctions while reducing due process protection. Crime and Delinquency, 42(3), 421-434. Levy, L. (1996). A license to steal. Chapel Hill: University of North Carolina Press. Mast, B. D., Benson, B., & Rasmussen, D. (2000). Entrepreneurial police and drug enforcement policy. Public Choice, 104, 285-308. Niskanen, W. (1971). Bureaucracy and representative government. Chicago: AldineAtherton.

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Clingermayer et al. / ASSET FORFEITURE AND POLICE PRIORITIES 335 Niskanen, W. (1975). Bureaucrats and politicians. Journal of Law and Economics, 18, 617643. Rainbolt, G., & Reif, A. F. (1997). Crime, property, and justice: The ethics of civil forfeiture. Public Affairs Quarterly, 11(1), 39-55. Worrall, J. L. (2001). Addicted to the drug war: The role of civil asset forfeiture as a budgetary necessity in contemporary law enforcement. Journal of Criminal Justice, 29(3), 171187.

James C. Clingermayer is the director of the masters in public administration program and a faculty member in the Department of Government, Law, and International Affairs at Murray State University. He has teaching and research interests dealing with many aspects of public policy and bureaucratic politics. Jason Hecker is the executive director of Literacy Center West in Cincinnati, Ohio, and is a recent graduate of the masters in public administration (MPA) program of Northern Kentucky University (NKU). He is also now an adjunct instructor within the NKU MPA program. Sue Madsen is a sergeant in the Union Township (Ohio) Police Department and a former deputy in the Clermont County Sheriffs Department who also worked in the Clermont County Drug Task Force. She is a graduate of the Southern Police Institutes administrative officers program and a 2003 graduate of the masters in public administration program at Northern Kentucky University.

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