For readers who aren’t familiar with asset forfeiture matters, I have uploaded a forfeiture complaint and its settlement from the case of State v. One Breitling Watch/Four Thousand Ninety Five Dollars ($4,095.00), Docket No. MID-L-6295-09 here.

According to the complaint, two men were arrested in Woodbridge on May 12, 2009 for possession of fifty-two pounds of marijuana.  When the men were searched, police seized $4,095 and a Breitling watch found in their possession.  On April 18, 2013, the parties settled the forfeiture action with the prosecutor keeping the cash but returning the watch to its owner in “as in condition.”

Readers will note that the complaint is styled as a “civil action” and that the cash and the watch, as opposed to the men themselves, are named as defendants.  Incredibly, New Jersey law (as well as federal law and the laws in most states) allow the government to “resort to a legal fiction” and sue the property itself “as though it were conscious instead of inanimate and insentient.” (See State of New Jersey v. One 1990 Honda Accord, 302 N.J. Super. 225, 229 (App. Div. 1997) affirmed 154 N.J. 373 (1998).

Resorting to this legal fiction allows the state many advantages.  Among them are a) the state only needs to satisfy a civil rather than a criminal burden of proof (preponderance of the evidence v. beyond a reasonable doubt) and b) “the fact that a prosecution involving seized property terminates without a conviction does not preclude forfeiture proceedings against the property.”  N.J.S.A. 2C:64-4(b).  Yes, even if you’re found not guilty of all crimes, the state still has a shot at forfeiting your stuff.  The state theorizes that a not guilty finding doesn’t mean that you didn’t do it, only that the prosecution wasn’t able to prove a crime beyond a reasonable doubt. An acquittal, of course, should not prevent the state from seeking title to your property under the lower, civil burden of proof.  Got that?

To sweeten the deal even more, the police–in this case the Woodbridge Police–get a cut of the forfeited cash and property.  N.J.S.A. 2C:64-6 authorizes county prosecutors to “divide the forfeited property, any proceeds resulting from the forfeiture or any money seized” with local police departments “in proportion to the [local police department’s] contribution to the surveillance, investigation, arrest or prosecution resulting in the forfeiture.”  So, in essence, the police have a vested interest in pursuing drug, gambling and other cases where lots of cash is likely to be found.  Not much profit, unfortunately, in solving burglaries, rapes and other crimes where there is an identifiable victim.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]