When Law Enforcement Pays: Costs and Benefits for Elected Versus Appointed Administrators Engaged in Asset Forfeiture

• Published date: 01 April 2020
• Date: 01 April 2020
• DOI: http://doi.org/10.1177/0275074019891993
• Subject Matter: Articles

https://doi.org/10.1177/0275074019891993

American Review of Public Administration

2020, Vol. 50(3) 297 –314

© The Author(s) 2019

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DOI: 10.1177/0275074019891993

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Article

Introduction

Under forfeiture laws, law enforcement organizations seize

billions of dollars a year from U.S. citizens. Some of this

revenue is connected to a criminal conviction, but a majority

accrues from civil forfeiture proceedings,1 which do not

require a conviction or even charges be filed. The issue of

civil asset forfeiture has gained salience of late because of

concerns about the tension that such activities create between

law enforcement and citizens and the consequences when

those tensions boil over in places like Ferguson, MO. While

most of the media attention has focused on civil asset forfei-

ture (see, for example, Sallah et al., 2014; Stillman, 2013), a

recent supreme court case (Timbs v. Indiana) has also refo-

cused public attention on the possibility that assets forfeited

after criminal convictions may violate constitutional prohibi-

tions against the levying of excessive fines.

Not surprisingly, given its controversial nature, asset for-

feiture has been a subject of significant interest among legal

and criminal justice scholars, but we argue that the practice

raises important questions about equity and fairness in the

administration of public programs and laws and should be of

interest to scholars of public administration as well. In this

article, we are particularly interested in the degree to which

asset forfeiture offers opportunities to refine theory about dif-

ferences between elected and appointed officials who deliver

comparable public services. We make this assertion because

work to date has not sufficiently explored seizures by more

than 3,000 sheriff’s departments across the country. Based

on jurisdictional data on total forfeiture revenue, sheriffs

account for one third of forfeiture dollars and, thus, have a

meaningful impact on the effect of seizure activity on citizens.2

Furthermore, the vast majority of sheriffs are elected, rather

than appointed like municipal police chiefs, which means

that work to date has neglected whether the electoral moti-

vations of the former lead to differences in the behavior of

these two sets of public administrators. Finally, the presence

891993ARPXXX10.1177/0275074019891993The American Review of Public AdministrationMughan et al.

research-article2019

1Indiana University Bloomington, USA

Corresponding Author:

Sean Nicholson-Crotty, O’Neill School of Public and Environmental

Affairs, Indiana University Bloomington, 1315 E. 10th St. #410E,

Bloomington, IN 47405, USA.

Email: seanicho@indiana.edu

When Law Enforcement Pays: Costs and

Benefits for Elected Versus Appointed

Administrators Engaged in Asset Forfeiture

Siân Mughan1, Danyao Li1, and Sean Nicholson-Crotty1

Abstract

The billions of dollars in assets seized by law enforcement each year represent a crucial source of revenue for these

organizations, but also raise important constitutional questions and can create significant tensions within the jurisdictions

they administer. Research on asset forfeiture to date has focused heavily on municipal police, largely neglecting forfeiture

activities by sheriffs. Thus, it has missed an important opportunity to build theory about the differences between appointed

and elected administrators and neglected an important source of institutional variation that may help to explain this

particular administrative activity. To develop expectations about the relative levels of asset forfeiture and the response to

intergovernmental incentives related to forfeiture, we draw on and extend scholarship comparing the behavior of elected

versus appointed administrators in other settings. We test those expectations in analyses of more than 1,200 sheriff’s offices

and over 2,200 municipal police departments between 1993 and 2007. Results suggest that sheriffs receive less forfeiture

revenue than municipal police and are less responsive to state-level policies that change the financial rewards of asset

forfeiture for agencies. These results hold whether we examine forfeitures made through the federal Equitable Sharing

Program, where civil and criminal forfeiture cases can be distinguished, or jurisdictional level data on forfeiture, where

civil and criminal forfeitures are combined. We conclude with a discussion of implications for both the research on asset

forfeiture and on elected versus appointed public administrators more generally.

Keywords

asset forfeiture, revenue-orientated policing, method of selection, electoral motivation

298 American Review of Public Administration 50(3)

of state and federal policies meant to increase asset forfei-

ture among local agencies, mean that this is a great place to

examine hitherto unexplored questions about the impact of

intergovernmental incentives on elected versus appointed

administrators.

To develop expectations about the relative levels of asset

forfeiture, as well as the response to intergovernmental

incentives, we draw on the literature comparing elected ver-

sus appointed administrators in other settings. This work

suggests that the relative need to satisfy voters creates differ-

ences in the behaviors of these actors (see, for example,

Besley & Coate, 2003). In this context, theory suggests that

sheriffs face potential electoral costs from seizing voter

property that they must weigh against the monetary benefits,

whereas municipal police do not face such costs, at least not

directly. Because of this calculation, we expect that sheriffs

receive less forfeiture revenue than municipal police, all else

being equal. We also extend existing work by considering

how the electoral motivation affects the impact of intergov-

ernmental incentives on the behavior of administrators.

Specifically, we develop the expectation that the electoral

costs for sheriffs should offset, and therefore reduce, the

effect of state-level policies that increase the monetary ben-

efit of forfeiture for local law enforcement.

We test these expectations in an analysis of 1,247 sheriff

offices and 2,278 municipal police departments between

1993 and 2007. We examine civil forfeiture and criminal for-

feiture revenue from the federal Equitable Sharing Program,

as well as total forfeiture revenue reported by the agencies.

Results suggest that sheriffs consistently report significantly

less revenue from asset forfeiture than do police depart-

ments. They also suggest that sheriffs are less responsive to

state policies that allow local law enforcement agencies to

keep a larger portion of seized revenue. We conclude with a

discussion of the implications of these results for our under-

standing of civil asset forfeiture and the behavior of elected

versus appointed administrators more generally.

Asset Forfeiture

Civil asset forfeiture is a two-step process. First, law enforce-

ment seizes private property believed to be connected to

criminal activity. Afterward, the seized assets are forfeited

(i.e., kept) by the government, with the proceeds typically

reverting to the seizing agency. Modern policies date back to

The Comprehensive Drug Abuse Prevention and Control Act

of 1970 which included a civil forfeiture provision, allowing

law enforcement to seize and forfeit “. . . drugs, drug manu-

facturing and storage equipment, and conveyances used to

transport drugs” (Blumenson & Nilsen, 1998, p. 44).3 The

intent was twofold, to mitigate the financial gains from par-

ticipating in the drug trade and to incentivize law enforce-

ment to do more anti-drug policing by allowing the agency to

retain a portion, if not the entirety, of the proceeds from

forfeited property. Over time, the list of seizable assets has

expanded to include almost any type of property including,

but not limited to, cash and real property, and every state has

adopted civil asset forfeiture laws of their own.

Civil asset forfeiture has proven to be highly controver-

sial. For starters, it is a civil and not criminal proceeding,

meaning a criminal conviction (or even criminal charges) are

not required; property may be seized and forfeited on suspi-

cion of connection to criminal activity.4 Scholarship suggests

that the majority of civil forfeitures occur without a charge,

or even an arrest (see, for example, Burnett, 2008; Sallah

et al., 2014). Moreover, because it is a civil case, the property

owner is entitled to fewer legal protections, making it easier

for the government to ultimately forfeit the seized property.5

Also, contentious are the financial incentives created by

allowing law enforcement agencies access to seizure reve-

nues. Given the important source of revenue that forfeitures

represent for many jurisdictions, a number of authors have

argued that they create questionable incentives for police

behavior and distract law enforcement from their primary

mandate of protecting public safety (Benson et al., 1995;

Blumenson & Nilsen, 1998).6 Actual empirical evidence on

whether police departments strategically focus on certain

types of arrests to maximize forfeiture revenue is mixed,

although studies of individual jurisdictions have suggested a

relationship between police behavior and forfeiture (see, for

example, D’Alessio et al., 2015; Kelly & Kole, 2016; Miller

& Selva, 1994). Regardless of their effect on incentives,

researchers and law enforcement officials both emphasize the

importance of forfeiture revenue (Cassella, 1997, 2004; Coe

& Wiesel, 2001; Williams, 2002), with one author finding that

40% of police executives reported forfeiture proceeds as

essential to their operational budgets (Worrall, 2001).

The extent to which state and local agencies are able to

profit off of civil asset forfeiture is governed by state law;

only seven states and the District of Columbia prohibit law

enforcement agencies from profiting at all from seizures,

whereas 25 states allow law enforcement to keep 100% of

forfeited revenue. However, the authority of state laws is

compromised by the federal Equitable Sharing Program, cre-

ated by the 1984 Comprehensive Crime Control Act. Under

the Equitable Sharing Program, state and local agencies seize

property under federal law, the federal government then pro-

cesses the seized assets, and shares the proceeds with the

state or local law enforcement agency once the asset is for-

feited (U.S. Department of Justice, 2009).7

Somewhat surprisingly, researchers have failed to demon-

strate a relationship between the generosity of state incentives

and the amount of revenue seized (Worrall & Kovandzic,

2008). Worrall and Kovandzik (2008) suggest, however, that

the null relationship between state monetary incentives and

seizure behavior is due to the fact that departments in restric-

tive states circumvent state laws through greater participation

in the Equitable Sharing Program. In other words, agencies in

states with restrictive laws regarding civil forfeiture are able

to circumvent those laws by allowing the federal government