With legal reasoning reminiscent of Catch-22, the court ruled that Brewer “failed to make a prima facie showing of gross disproportionality,” since he “presented no evidence regarding the amount of the fine in relation to the crime it is designed to punish,” even though Brewer had not been charged with any crime that he could be punished with. (Adding to the absurdity, Brewer was not even the defendant in the forfeiture case. His cash was. In civil forfeiture cases, the government sues the property, not its owner.)
Moreover, the seizure appears to have circumvented Nebraska law. Even though a Nebraska deputy seized the cash, after the seizure, the Sheriff’s Office turned the case over to the Drug Enforcement Administration to begin federal forfeiture proceedings. Under a program called equitable sharing, police can transfer seized property to a federal agency and take property under federal law. This allows law enforcement to bypass tougher restrictions set by state law.
A 2010 report by the Institute for Justice found that Nebraska is one of just three states that impose the same high evidentiary standard (beyond a reasonable doubt) on the government in both criminal prosecutions and civil forfeiture proceedings. But for federal forfeiture cases, prosecutors need only show that the property was more likely than not used in connection with a crime—a much easier burden to meet. Moreover, equitable sharing lets local and state law enforcement to keep up to 80 percent of the proceeds of forfeited property; Nebraska state law allows 75 percent.
Douglas County, Neb. is particularly aggressive in pursuing forfeiture. According to The Washington Post, without obtaining warrants or indictments, the Douglas County Sheriff’s Office seized and kept $11.5 million in equitable sharing funds since 9/11, one of the highest totals in the nation.