New Federal Civil Asset Forfeiture Legislation Won’t End Police Shadow Surveillance or Limit Tech Budgets
Chicago Appleseed Center for Fair Courts and the Chicago Council of Lawyers’ report on civil asset forfeiture (CAF) highlights some of the horrors around property (cash and cars mostly) seized from citizens who have little to no connection with any crime. One outcome of this nefarious practice is that police departments use the funds they raise through CAF as an “alternative funding source,” to have a steady stream of cash to buy surveillance and tech equipment, sidestepping the traditional budget process where there is more government oversight.
To this end, we recommend that funds raised through asset forfeiture should never be given to law enforcement agencies. With police conducting seizures where they can pocket the majority of the proceeds, there is a perverse incentive for officers to “scout” for assets. While civil asset forfeiture funds are a drop in the bucket for the grand budgets of major city police departments – 6% of CPD’s total public budget was forfeiture income in 2015 (that’s still $4.7 million just from that year; it was over $8 million in 2021) – the process is a novel way for departments to fund their own projects without government oversight. In 2022, the New York City Police Department seized over $33 million from citizens. A portion of these civil asset forfeiture funds were used for new robot police dogs.
In Chicago, the police department spent CAF funds on surveillance technology and for furthering the “war on drugs.” The city’s roughly $8 million a year contract with SoundThinking (formerly known as ShotSpotter, an acoustic surveillance tool deployed around the city) was, in part, paid for with funds acquired through the war on drugs via civil asset forfeiture. San Diego, among other cities, has also funded their SoundThinking contracts entirely by funds acquired through CAF. During his campaign, Chicago Mayor Brandon Johnson promised to end the SoundThinking contract, but the contract was extended and increased in cost to over $10 million this past June. Chicago Appleseed and the Chicago Council of Lawyers, in line with many other Chicago organizations, hopes that Mayor Johnson does not renew the contract set to expire on February 16, 2024 (take action here).
- Spending funds from CAF is nothing new – before SoundThinking, Chicago was buying dirt boxes and StingRays to surveil citizens. You can see exactly how the Chicago Police Department (CPD) spent civil forfeiture money here; about 9% of known expenditures go to wiretapping equipment, license plate reading cameras, devices that track and access cell phones, and other “invasive surveillance equipment the department shields from public view.”
One loophole policy that contributes to the ability of cities to do this is called “equitable sharing,” allowing local jurisdictions to “take advantage of looser federal laws” in searching and seizing assets. Equitable sharing, linking up the US Department of Justice with state and local law enforcement agencies, allows them to “seize and forfeit property under federal law—and receive up to 80% of the proceeds.” The shared money is “passed from the federal agency to the local law enforcement.” This means that even though money seized must be “vaguely linked to a crime,” police departments can seize under the rules of the Drug Enforcement Administration (DEA), allowing agents to search and seize assets “as long as the person they approach agrees to be searched.” Then, having collected all this money on their own, without it being allocated to them by normal city budgeting practices, police are able to spend it “subject to lighter rules than other government spending.” It often ends up going to new surveillance, tech projects, and general nonsense in trials or test runs, before a city will expand the use of the technology and roll the money into a corporate fund.
Illinois takes advantage of this program, relying the 6th most heavily on equitable sharing of all the states and DC. About 5,400 local departments have taken part in the program since 2008. One report detailed how an Ohio police department spent $121 million on “high-powered guns, armored cars, electronic surveillance equipment, helicopters, luxury cars and … a clown.” Since they’re relying on funds that they themselves seize through CAF, in some places, police don’t have to inform the public about how they’re spending those funds. The existence of CAF undermines attempts to regulate or reallocate police budgets, rendering prohibitions of communities’ tax dollars to purchase this kind of equipment meaningless. Even with the new rules set by the Illinois State Police outlining how agencies can apply for money seized through CAF, it is unclear how a police department gets money, processes, and sends to ISP after a seizure.
Over the summer, the Fifth Amendment Integrity Restoration (FAIR) Act, H.R. 1525 – which would end equitable sharing programs – moved unanimously out of the House Judiciary Committee. Although this new federal civil asset forfeiture legislation is a step in the right direction, it won’t end police shadow surveillance or limit tech budgets.
The FAIR Act would end administrative forfeitures, a process by which over 90% of federal forfeitures are processed before anyone ever sees them inside of a courtroom and heighten the burden for federal prosecutors to prove the connection between the person’s property and the crime they allege. Additionally, the legislation would “stop financial forfeiture incentives by sending proceeds to the Treasury’s general fund instead of to law enforcement agency budgets,” only applying to federal forfeiture funds. The law also provides counsel for indigent property owners, majorly increasing their chance at recovering their property.
However, because this is a federal bill, nothing in the FAIR Act will limit state and local law enforcement from using state civil asset forfeiture laws to keep doing the same things, and criminal forfeiture fund usage is also unaffected.
Equitable sharing is not the only enabler of CAF, so it is important that other measures are taken. The Institute for Justice shows Illinois’ forfeiture revenue in 2019 as $61 million (Illinois does not report whether forfeitures are processed under civil or criminal forfeiture law so this is a combined figure) – only about half of that is from Equitable Sharing with the Department of Justice or Treasury. As of 2016, the CPD did not disclose forfeiture incomes or account for the funds in its budget, keeping an “off-the-books secret stream of income to supplement the Bureau of Organized Crime’s public budget” instead.
While we support the spirit of the FAIR Act, there is much more that can be done to reduce the injustices caused by asset forfeiture, which effectively extracts wealth from communities without due process. We encourage the end of civil asset forfeiture.
As we stated in our 2023 report on CAF: “Criminal asset forfeiture, which has higher due process standards and requires a criminal conviction as a prerequisite for asset seizure, should be the only form of asset forfeiture.” Along with ending asset forfeiture in civil courts altogether, Chicago Appleseed Center for Fair Courts and the Chicago Council of Lawyers urge that “any funds that are acquired through [criminal or civil] asset forfeiture should go into a neutral account, such as a city or county’s general fund, to ensure that police don’t have an incentive to seize property for profit.” This recommendation has already been implemented in states like New Mexico, where the use of CAF funds have been restricted away from police departments, instead heading back into the “state’s general operating expenses” (which still creates some incentive), and measures were introduced to make the eventual usage of these funds more transparent.
In Chicago and federally, the information regarding what CAF has funded was obtained through Freedom of Information Act (FOIA) requests. The ACLU of Illinois has introduced a bill to improve CAF data collection in the state (HB 3038), which people shouldn’t have to resort to FOIA to obtain. The legislation would require reporting on everything from the initial seizure and its basis to the end result of the case and what happened to the property.
- The ACLU of Illinois has already created a toolkit to help you Know Your Rights with Civil Asset Forfeiture, which you can find here.