Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective, and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Greiner, and this is Proof Over Precedent.
This week we're bringing you a student voice.
[00:00:37] Speaker B: Hello, everybody. My name is Strong Ma, a student at hls and I'm here to introduce you to the Proof Over Precedent podcast where I'll be joined with my guest, Joe Lieberman. Joe, you want to introduce yourself a little bit?
[00:00:48] Speaker C: Thanks, Strong. Yeah. Hi, everyone. Joe Lieberman. I'm a 2L at Harvard Law School. Rising 3L, I should say.
As part of Professor Reiner's Access to Justice Lab class, I've been looking at various issues. Previously bankruptcy and today civil forfeiture.
[00:01:07] Speaker B: Yeah, and as connected to actually your blog post on civil forfeiture, this podcast is really just going to be running through sort of your time spent researching and writing about it and what it means for access, justice issues and the quantitative study of law.
So can you just quickly introduce the audience and myself to what civil forfeiture is in general?
[00:01:29] Speaker C: Absolutely. So civil forfeiture is a practice conducted by law enforcement agencies that essentially allows them to seize and keep property that they have probable cause to believe was used to commit a crime, facilitate a crime, or even something that was purchased with the proceeds of a crime. But it's a pretty broad power and there have been a few high profile examples of this practice that most people are likely aware of that are success stories of the practice. The federal government sees billions of dollars in assets from Bernie Madoff and redistributed those to the victims of his Ponzi scheme.
Civil forfeiture arose really in an interesting way where the government was attempting to combat piracy practices and other, you know, criminal practices related to shipping, where it was difficult to catch the people who were actually doing it. So the government would conduct in rem proceedings against their property and seize the property. So that's where civil forfeiture comes from. But it's modern and current form looks a lot different than that.
[00:02:37] Speaker B: Yeah, for sure. You know, I'm assuming that the piracy rates, at least sort of at sea, have dropped precipitously in current times. So what does civil forfeiture look like now? You know, most commonly, there's the high profile Ones you described Bernie Madoff. But is that usually how civil forfeiture is used by police departments in America?
[00:02:57] Speaker C: Definitely not. I imagine also like you say, that the piracy as an issue is something that we deal with less than countries were dealing with a few hundred years ago.
What it looks like today is a lot of, you know, small dollar forfeitures. The average value of a civil forfeiture of currency in the US is below $1300. And in some states it's as low as in the $300. And we're seeing most civil forfeitures today take place related to small drug crimes and DUIs. So it's really in its most common form, not being used to combat, you know, large scale crime or criminal organizations like drug car.
It's being used to, you know, essentially extract some amount of money or assets from people who have committed small crimes, who themselves probably don't have much in the way of a significant asset base.
[00:03:53] Speaker B: Right.
[00:03:53] Speaker C: And. Sorry, go ahead.
[00:03:56] Speaker B: Yeah, and I think with having all these proceedings go against a lot of people without lots and lots of resources, what does defending a yourself from a civil forfeiture proceeding by the police look like?
[00:04:11] Speaker C: It varies state to state, but for the most part it, it can be pretty difficult and in some cases not even worthwhile. So starting with why somebody might not defend themselves in the civil forfeiture. Like I said, you know, the, in states, especially in states where, you know, the dollar value of the assets seem used is pretty small, the financial calculation doesn't make sense for somebody to go out, hire a lawyer and then, and then challenge the civil forfeiture. In most states where this practice is happening through the civil system and not the criminal legal system, you don't have a right to counsel. So it's on you to go out and hire a lawyer, making it at least somewhat expensive for folks to challenge their forfeiture. Things vary state to state, but the burden of proof on the government to actually obtain title to the property is lower than beyond a reasonable doubt. They're not securing a criminal conviction here, even though ostensibly civil forfeiture is a practice that's tied to a crime that the government is either prosecuting or is suspecting the property of having been involved with. Winning a civil forfeiture case is much easier for the government than winning a criminal conviction. And some states actually flip the burden of proof around, requiring that the person who owns the property actually prove that the property was not connected to a crime, which is again, something that's pretty difficult for folks to do. There are also Procedural hurdles that. That people are facing, like tight deadlines to actually challenge the seizure. You know, you get notified that something's been taken away from you. In some jurisdictions, you might have as little as 10 days, you know, to file a challenge. You know, the stats bear out that in a lot of states, a lot of civil forfeitures are really not being challenged. For example, in Minnesota, less than one fifth of civil forfeitures are challenged, and in Colorado, that figure is 1%. So most of these are actually not being challenged whatsoever, which implicates all of the access to justice questions that we've been talking about throughout this series.
[00:06:14] Speaker B: Yeah. And given that many of these proceedings aren't challenged, does the Constitution place any limits on, like, what the police can do in terms of civil forfeiture proceedings? Are there any protections that are offered to people who are facing civil forfeiture?
[00:06:35] Speaker C: So there are some constitutional limits on civil forfeiture. The property owner is entitled to a timely hearing. The 8th Amendment excessive fines clause does apply, but the court has not significantly curtailed the practice. The court has, in fact, held that civil forfeiture serves to act as a deterrent. Query whether the stats actually bear that out. Well, I'm sure we'll talk about that more later. Civil forfeiture does not count as punishment for the purposes of double jeopardy, which is, again, significant because if you think about civil forfeiture in. In situations when it proceeds alongside a criminal case, if it's, you know, connected to the same crime, there's an argument to be made that, well, you're just, you know, maybe punishing the person through the criminal legal system and then separately punishing them through the civil legal system.
[00:07:23] Speaker B: Got it.
[00:07:24] Speaker C: The court has said the double jeopardy does not restrict that. There's also a question of a concept called an innocent owner defense, which is connected to. What is a pretty significant problem with civil forfeitures is that oftentimes the property that's implicated in a case is owned by a third party, meaning somebody who wasn't involved in a crime, if there was one. I opened my blog post with this story of a woman whose son was driving her car. He was pulled over and arrested on minor drug charges. And then the state of Alabama attempted seized the car and attempted to have it permanently forfeited.
It ultimately was not, but she was without the car for 20 months while the case was being. Was working its way through the courts. And that really illustrates what's common in a lot of these cases is that somebody who wasn't involved in the alleged crime is the person whose property is being seized. So how do they go about getting their property back? Well, a lot of states have, yeah, what I mentioned, what's called an innocent owner defense, where the third party has to prove that they.
That, sorry, the third party has the burden on them to assert this innocent owner defense.
But some states don't provide this innocent owner defense. The Supreme Court has held that that does not violate the due process clause.
[00:08:41] Speaker B: Got it.
This all sounds like a really important problem, especially for people living in very policed communities. And so has there been any studies on how much of an impact civil forfeiture has as a proceeding, as a procedure on communities and outcomes for people that. That face forfeiture?
[00:09:04] Speaker C: That's a great question. So civil forfeiture is generally an understudied practice. So.
And the studies, to the extent that we have them, predominantly focus on the impact on crime rates. So we do have one study, a panel study coming out of New Mexico, which actually got rid of civil forfeiture about nine years ago. The study looked at what its impact was on crime rates because recall what I said earlier, the Supreme Court has pointed to the supposed deterrent effect of civil forfeiture on crime as, you know, a beneficial aspect of it. The New Mexico study didn't bear that out. There was no impact on crime rates according to this study. I do want to also note another study that had a really interesting finding that showed that civil forfeiture, it doesn't tend to rise and fall with crime. It actually tends to rise and fall in response to economic conditions. And so what we kind of see sometimes is during periods of economic downturn when municipal and state budgets are tight, law enforcement agencies are almost using the practice as a budget, you know, influx, you know, when they're, when they need, when they need cash. So there's pretty compelling evidence that the practice isn't really tied to its supposed justifications and is in fact tied to, you know, just the financial needs of law enforcement agencies.
But we do need to do more study of the practice overall. States are starting to try to reform it and, you know, we'll have to see whether that, whether or not those reforms are reaping any benefits. But I'll pause there, see if you have other questions.
[00:10:49] Speaker B: Yeah, for sure.
[00:10:50] Speaker A: Yeah.
[00:10:50] Speaker B: I'm actually curious what these reforms might even look like. How, how does one try to reform the civil for future system? Has there been different types of reforms explored in the space?
[00:11:01] Speaker C: Yeah. So given the attention that's been paid to civil forfeiture over the last Decade or so, a number of states have tried to reform it.
And those reforms have basically proceeded into broad forms.
States, a handful of states, three states specifically, have actually ended civil forfeiture, which leaves only criminal forfeiture. And what that means is the forfeiture is actually just part of the criminal sentence. So you have to be convicted of a crime in order for the property to be forfeited.
But short of that, there are 16 states who now require a criminal conviction to be a prerequisite to civil forfeiture. So the forfeiture still proceeds to the civil system.
There's no right to counsel, and it's not attached to the criminal trial, the criminal sentence, but it does require a prerequisite of that criminal conviction. So theoretically, the state has met at least a higher burden of proof at some point in the process.
There's one major caveat to that. Some of the states who have passed that specific reform have exempted uncontested property from it. So as I referenced with those statistics earlier, out of Minnesota and Colorado, we're seeing most, you know, small dollar civil forfeitures going unchallenged. And so presumably then most civil forfeitures would then not have that criminal prerequisite, criminal conviction prerequisite. So those are the two, you know, broad strokes areas of reforms that we've seen.
And now the question is, are those working? And sort of as a more fundamental question, what does it mean for those reforms to work?
Right.
[00:12:43] Speaker B: And in doing this type of research on whether these reforms are working, do you have any thoughts on what that kind of research might look like?
What are the outcomes you might be studying? Obviously there's one that you mentioned which is like crime rates. Right. Because trying to challenge this narrative, that deterrent is the central purpose of civil forfeiture, but there's also probably other purposes as well, or outcomes that we might be, might want to study in tracking civil forfeiture?
[00:13:11] Speaker C: Yeah, you're absolutely right about that. So I'll make two points. One, I do think that there is an area of study, sort of on the more micro level, maybe more individual level, about the effect that civil forfeiture has on the people who actually have their property taken away from them.
And then the second point that I'll get to is how do we study the more macro kind of system, jurisdiction wide effects of the practice on things like crime, but also on, you know, other metrics, you know, in terms of, you know, just the overall well being and policy outcomes that we care about in the community. So on that micro individual Level, you could look at some of some, you know, study methods, like randomizing what options are available to a prosecutor's office, you know, or a police department in terms of like, maybe for a third of cases, they have civil forfeiture on the table. For a third of cases, they only have criminal forfeiture on the table.
And in another third of cases, they have no options on the table or all. Or, you know, we can break up into quarters and have all options on the table. So, you know, just so you know, those randomized control trials and then see how outcomes for similarly situated people differ based on, you know, whether they were randomly sorted into a particular bucket. The tricky thing about that is those reforms won't get it sort of the overall questions that we care about for. Again, if it's. If a state is considering whether to get rid of simple forfeiture, we might know, okay, person to person, if somebody loses their property through the civil forfeiture system, maybe it's a, you know, it's a bad thing for their future economic outcomes, for their future participation in crime, whatever the measures we look at to study for those people.
But as policymakers, people care about what are the overall effects. And getting at that through a randomized control trial is a little bit more difficult. There's also sort of the, you know, sort of maybe step zero question, which is like, even before we get to what option is available to the law enforcement agency or the prosecutor's office in terms of pursuing a forfeiture, we might really care about whether they pursue the forfeiture at all. You know, as we've talked about, a lot of these forfeitures are going unchallenged. And so really, the key question is whether the state pursues a forfeiture action at all. So those are going to have to look more like panel studies where we see a policy change and we track the aggregate effect over time, like what was done in New Mexico. But hopefully those would study metrics more broadly than just a focus on crime. Yeah, for sure. Yeah.
[00:15:44] Speaker B: I'd be very interested in seeing, like you said, outcomes beyond just crime. Right. You have the rate at which they pursue proceedings. I'd be interested in seeing the perception of these proceedings or the criminal justice system as a whole perceive fairness as a proxy for actual normative fairness in the justice system. I think those are interesting considerations for research.
[00:16:09] Speaker C: You make a really key point there, strong in terms of the perception. And I think one more point that I want to make just in terms of an interesting tension here regarding some of the Access to justice values that we commonly talk about. You know, one thing that we do commonly, you know, have as like a refrain is, you know, it's, it's certainly better to be represented by counsel than, you know, not.
And obviously having a lawyer, you know, probably helps improve the perception of fairness maybe in certain proceedings. But, you know, again, it's this point where we would probably see more lawyers, you know, in these civil forfeiture proceedings if the seizures were larger, which maybe we don't want to see if we're thinking about aggregate effects. So again, this kind of comes back to the sort of like, how do we really study this issue? And, you know, if you focus too narrowly, you might come to the conclusion of saying, well, criminal forfeiture is better than civil from an access to justice perspective because you have a lawyer, and in civil forfeitures you don't have a right to counsel.
But if it's proceeding to the criminal system, that brings in a whole host of other effects, you know, that the criminal system has on people's lives that the civil system doesn't necessarily, you know, incarceration things that are on the table.
And so it's worth making sure that we have that zoomed out view as well to kind of deal with that trickiness.
[00:17:32] Speaker B: Yeah, yeah. Even to the point of like, the role lawyers play in the system. I'm thinking about, you know, other potential reforms that might make people more willing to challenge civil forfeiture in just a civil proceeding context.
Things like having a very proceduralized way to award reasonable attorneys fees so that it makes people more willing to obtain counsel to challenge certain forfeitures that are under the economically efficient amount they can get back or like awarding punitive damages against police departments who, who do this, you know, in a way that seems to be not in accordance with justice. And more about budgetary problems. Right. Like, have you encountered anything like that in your research? I'm just curious to know.
[00:18:24] Speaker C: That's a really good question and not something that I've actually seen a lot about in terms of the reforms that have been put on the table.
But I love that idea because, you know, it is critically important to think about the incentives that people are facing. You know, if we're talking about aggregate effects, we have to understand the economic incentives, you know, that lawyers have that the system has overall. You know, if you raise the cost of a civil forfeiture, you know, for a police department or the state, or you improve the, you know, expected profit of a lawyer by getting involved in representing someone in the civil Forfeiture that can, you know, definitely take things. And that, you know, is something that I've actually talked about a little bit in my other blog posts in a different context, talking about bankruptcy.
But, yeah, I do hope that that's something that, you know, policymakers put on the table and people try to study because, you know, every state is going to approach this differently. Certainly this is a reform that is probably seen as like, you know, like soft on crime, quote, unquote. And so for states where such reforms are, you know, maybe politically unlikely, how do we get at other means of improving the access to justice in this process overall? And so I like that you throw out those suggestions.
[00:19:43] Speaker B: Yeah.
Well, thank you so much again, Joe, for spending some time and talking with me about your blog post. Any sort of final closing thoughts on, you know, your research on civil forfeiture and what it means for access to justice?
[00:19:58] Speaker C: Yeah, I mean, I think I'll just leave with the broad point that I think right now in this country, in a lot of different areas, we are having very important and worthwhile discussions about what it means to have due process and, you know, what it means to get your day in court.
And so I think any practice where the government is able to extract something from people without it being challenged is one that we should take a second look at. And the stats about civil forfeiture tell it, tell us that that's exactly what's happening. You know, very few of these cases are your Madoff situations.
What's happening in most situations is people are just having money or assets taken from them and they don't have the recourse to get it back.
And so I would just highlight this as a critically important issue if we care about the values of due process and access to justice in our system. So I certainly hope that states continue their reform efforts and academics continue to study this field. But thank you for this conversation. Strong. It's been great to discuss.
[00:21:06] Speaker B: Yeah, totally with you there. It's been great.
So this has been the Proof Over President podcast. Thank you so much for listening.
[00:21:12] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
Thanks for listening. If we piqued your interest, please subscribe wherever you get your podcasts. Even better, leave us a rating or share an episode with a friend or on social media.
Here's a sneak preview of what we'll bring you next week.
[00:21:38] Speaker D: One major issue in these types of debt collection actions is an extraordinarily high failure to appear rate, which is estimated at 70 to 90%.
And the issue with that is when a defendant fails to appear in court, the court will enter a default judgment against the defendant, even if the claim is meritless.
So even if the credit card company is wrong, for example, if they didn't. If they claim you didn't pay your credit card debt and you actually did, just because you didn't appear in court, you lose.
And that can lead to all sorts of bad outcomes.
