This commentary is by Sen. Tanya Vyhovsky of Essex. She is a Progressive/Democrat representing the Chittenden-Central District.
Vermont law enforcement agencies alert the media when they seize large amounts of drugs. They like the publicity. But once the photo op ends, no one knows what happens to the cash, cars and even entire houses that law enforcement may seize as the first step of a process known as civil forfeiture. Current state law allows police and prosecutors to keep all of that secret.
Starting civil forfeiture is easy. Officers must merely find “probable cause” for the seizure. Then they transfer the property to prosecutors who initiate forfeiture litigation to take title to the property. Property owners then must go to court and engage in the defense of their property’s involvement in an alleged crime. Yes, in civil forfeiture cases, the property is on trial.
Many property owners never make it to court. They walk away by choice — regardless of their guilt or innocence — because of the high costs and complexity of civil forfeiture litigation. There is no public defender in civil processes, so property owners must either pay for their own defense or attempt to represent themselves in complex legal proceedings against the resources of the state.
Most of the forfeiture litigation in Vermont is done by federal prosecutors. In federal courts nationwide, as many as 90% of civil forfeiture cases never even make it before a judge. Worse, federal prosecutors often successfully gain title to the assets regardless of what happens in the separate criminal proceeding if they even happen at all. This means that Vermonters can be acquitted in criminal court but still lose their property in civil court.
Once the government prevails, federal agencies take a small cut of the proceeds and transfer the rest back to their local and state counterparts. Participating agencies call this maneuver “equitable sharing.” This process is used in Vermont to circumvent state law and court rules, which Vermonters would find less intimidating and expensive than federal courts.
Vermont state law allows agencies to keep 45% of civil forfeiture proceeds for themselves when the litigation takes place in state courts. Under federal equitable sharing, however, state and local agencies get back 80% from the federal government. Equitable sharing allows Vermont agencies a profitable way around state law.
A U.S. Departments of Justice and Treasury report puts equitable sharing payments to state and local agencies at more than $16 million for Vermont agencies from 2000 to 2019. However, similar details about forfeited property in Vermont is sparse under the current state law.
Nobody knows how often people have lost property under state law without any conviction of a crime, or the property total that state’s attorneys forfeited from the spouses, parents and children of criminal suspects because their property might have been involved in a crime, even if they themselves were not.
Vermont law requires local and state agencies to keep records but only locally. There is no centralized database. State law requires no spending reports or audits. Our official policy is to blindly trust but never verify.
One former police officer in Manchester took advantage of all this secrecy, stealing $2,295 from the department evidence room in 2017. We have no way of knowing how often this happens in Vermont, but we do know that when auditors finally looked at civil forfeiture records in Albany, New York, they busted a sheriff’s official for embezzling $68,000. A South Carolina police chief stole $80,000. And a Pennsylvania detective went to prison for stealing $150,000 out of a safe.
This lack of transparency breeds mistrust. It creates an easy space for abuse, and Vermont is especially vulnerable.
The Institute for Justice, a public interest law firm that opposes civil forfeiture, gives Vermont mostly failing grades on a national transparency and accountability report card. Vermont gets an F for forfeiture accounting, an F for statewide forfeiture reports, an F for penalties for failure to report data and an F for financial audits of forfeiture accounts.
The secrecy makes informed debate about civil forfeiture impossible in Vermont.
The governor, the attorney general, and all 180 members of the state Legislature are asked to make policy based on anecdotes, hunches and rumors. We are barred from making data-based decisions to build a system that is fair, equitable and accountable to the people.
Despite the massive blind spot, some policymakers see no problem. The state Senate established a working group in 2022 to explore forfeiture reform. In spite of admitting that there are real limitations in the available data, they recommended keeping the status quo.
Vermonters deserve better. That’s why I introduced S.226. It would require meaningful reporting and a centralized collection of that data. Agencies could continue seizing and keeping assets, but they would have to work in the light.
