States Seize on Improvement of Asset Forfeiture Laws

As 2019 progresses, many states continue their efforts to change their asset forfeiture laws. Asset forfeiture is the permanent taking of private property by government agencies at the local, state, and federal levels. Civil asset forfeiture abuses in states throughout the country are well documented. There are several instances where individuals have seen their property seized by the state or federal government, despite never being charged with a crime. In addition, it is very difficult for individuals to get their seized property back from the government. Frequently, the cost of getting the property back is greater than the value of the property, as hiring an attorney is often prohibitively expensive. Furthermore, in many instances the burden is on the individual whose property was seized to prove the property’s “innocence.”

Replacing Civil Asset Forfeiture With Criminal Forfeiture

Many states have considered legislation that would abolish civil forfeiture in favor of criminal forfeiture, meaning someone would have to be convicted of a crime before the government permanently takes their property. In a criminal proceeding, the burden the government must meet to convict someone of a crime is “beyond a reasonable doubt.” However, in a civil asset forfeiture proceeding, the burden in many instances is merely a “preponderance of the evidence,” a substantially lower burden than “beyond a reasonable doubt.” In addition, “preponderance of the evidence” is even lower than the burden of “clear and convincing evidence.” As seen by these different standards, it is fairly easy for the government to meet a “preponderance of the evidence” standard when compared to the higher “beyond a reasonable doubt” standard.

South Carolina is considering a measure that would abolish civil asset forfeiture and would join Nebraska, New Mexico, and North Carolina as a state that has replaced civil asset forfeiture with criminal forfeiture. The bill has received broad support across party lines. South Carolina HB 3968 was introduced by Representative Alan Clemmons (R); and it currently has over 100 co-sponsors, including Representative Gilba Cobb-Hunter (D), the President of the National Black Caucus of State Legislators. “I am pleased to stand with this bipartisan group, Democrats as well as Republicans, African-Americans as well as whites, to say we have come together on this issue to say enough is enough in South Carolina. We are going to stand for the citizens of this state,” said Cobb-Hunter. “We . . . stand with the presumption of innocent until proven guilty,” said Clemmons. “We also stand for the presumption of the sanctity of property rights.”

Preventing Circumvention of State Protections on Property Rights

A change preventing law enforcement agencies from circumventing laws enacted by their respective state is being considered in a handful of states this year. These proposals would address both equitable-sharing and federal adoption. Equitable-sharing can occur in two different ways. First, state government agencies can give property they have seized to a federal agency, which can elect to “adopt” it for federal forfeiture if the reason the property was seized was due to a violation of federal law that permits forfeiture. Another way equitable-sharing can occur is when state and local officers collaborate as part of a joint task force involving members of state and federal law enforcement. The federal government can then seize property that is eligible for equitable-sharing. Via equitable-sharing, state agencies involved in the seizure and forfeiture of the property can receive up to 80 percent of the proceeds of the forfeiture. As soon as forfeited property comes under an equitable-sharing program, federal, not state, forfeiture law applies even though state law may prohibit the law enforcement agency’s access to proceeds of the forfeiture.

Both Missouri (HB 444) and Tennessee (HB 340) are considering legislation that would prohibit or place limitations on equitable-sharing and federal adoption. HB 340 prohibits federal adoption unless the seized property includes U.S. currency in excess of $100,000. This allows federal adoptive forfeitures to continue, but would permit state and federal agencies to focus on big seizures, such as the interstate trafficking of drugs and cash by members of large-scale drug cartels. Importantly, both HB 444 and HB 340 do not restrict local or state law enforcement agencies, including drug task forces, from acting alone or collaborating with a federal agency or other agencies to seize contraband or property that is the proceeds of criminal activity. Over the last few years, seven states and the District of Columbia have passed anti-circumvention legislation to close the equitable-sharing loophole.

Transparency

In many states, most records regarding asset forfeiture do not provide information essential to evaluating a government agency’s use of the process. Frequently, these records fail to reveal basic information such as the type of property that was seized and forfeited, the size of the average forfeiture, the estimated value of property retained for government use, or whether the individual whose property was seized and subsequently forfeited was convicted or even charged with a crime.

In addition to attempting to abolish civil asset forfeiture, South Carolina (HB 3307) is seeking to require agencies in the state to make information publicly available about their seizures and forfeiture of property. This information includes the name of the agency that seized the property, the type of property that was seized, the value of the property, the criminal offense that led to the seizure, the final outcome of the forfeiture proceeding, and the amount of the value of the property kept by the law enforcement agency. Documenting this information and making it public will help protect against abuses of the asset forfeiture process.

Alabama’s undertaking of this issue was unique. This year, the Alabama District Attorneys Association and other law enforcement groups helped craft a publicly searchable civil asset forfeiture database as part of the Alabama Forfeiture Accountability System. This database will be a voluntary reporting initiative that contains detailed information to guide lawmakers as they review the seizures and forfeitures conducted by law enforcement agencies. All the information will include references to the underlying criminal activity, cases, location data, description of the property seized, whether the property owners were represented by an attorney, and the final disposition of the case and property. This extra-legislative action to make the asset forfeiture process more transparent was the result of collaboration between State Representative Arnold Mooney and a number of state law enforcement groups.

Over the last three years, Idaho, Illinois, Maryland, Mississippi, and New Hampshire have made their asset forfeiture processes more open and transparent. The trend has certainly continued in 2019 and will likely continue to do so in subsequent years.

Improving the Status Quo

Since 2014, more than 29 states have enacted laws limiting asset forfeiture or making the civil asset forfeiture process more transparent. Many of these states based their reform efforts on the ALEC models Reporting of Seizure and Forfeiture Act and the Asset Forfeiture Process and Private Property Protection Act. These policies outline how states can better protect individual private property rights.

If the last few years are any indication, states will likely continue to examine their laws on asset forfeiture and make improvements to this area of their justice system. These improvements could involve making the process more transparent, limiting circumvention of private property protections, or abolishing civil asset forfeiture. This is especially true as states seek to emulate the successes of several of their counterparts that have enacted changes to their asset forfeiture laws.