Forfeiture Reform Hits the Battleground States

When Iowa and New Hampshire make news together, it usually means yet another presidential election has kicked off.  But this time, there could be bipartisan good news out of both states.

On Tuesday, Iowa Gov. Terry Branstand signed into law Senate File 446 to reform the state’s civil forfeiture laws. The bipartisan bill, which passed both chambers of the Iowa Legislature with only a single vote against it, will require that law enforcement secure a criminal conviction before they can permanently confiscate private property worth less than $5,000.

SF 446 will also restore the presumption of innocence by shifting the burden of proof from innocent owners to the government, raise the standard of proof for forfeiture to clear and convincing evidence, and implement new recordkeeping requirements to boost accountability. Under the previous law, law enforcement could seize and keep private property without so much as charging anybody with a crime, let alone convicting them of one. The burden also fell to innocent property owners to prove their property had no connections to any crimes they may or may not have been charged with.

While the new law is a step forward, it is far from comprehensive reform and leaves many underlying issues unaddressed. Among these are forfeiture’s perverse financial incentives, which encourage law enforcement to pursue cash instead of criminals. Law enforcement agencies can still retain up to 100 percent of the proceeds from forfeited property, which means agencies’ bottom lines depend heavily on forfeiture. SF 446 also does nothing to close the equitable-sharing loophole, which has doled out more than $36 million in federal forfeiture money to Iowa agencies. Even with the new recordkeeping requirements, Iowa still fails several basic metrics for forfeiture transparency and accountability.

Halfway across the country, New Hampshire lawmakers had already updated their laws to require criminal convictions for permanent forfeiture. But unfortunately, they neglected the same major loophole that Iowa’s SF 446 overlooked: the reform does not apply to the U.S. Department of Justice’s Equitable Sharing Program. Consequently, state and local law enforcement agencies can avoid the new restrictions and still get an 80-percent cut of forfeited assets without a criminal conviction by calling in federal agencies.

To close this loophole and protect innocent property rights, the New Hampshire House of Representatives passed House Bill 614 in March. The bill would allow state and local agencies continue cooperating with their federal counterparts, as usual, but it would require New Hampshire law enforcement to abide by state forfeiture laws for equitable sharing cases involving less than $100,000 in seized assets. This would mean that federal forfeiture cases would still require a criminal conviction in order for state and local officials to permanently seize property.

This legislative fix seems like common sense to everyone from House lawmakers to the editorial board of the New Hampshire Union-Leader, the state’s largest newspaper. Bafflingly, the state Senate Judiciary Committee recommending against its passage, but the full Senate instructed the committee to reconsider, which suggests that lawmakers recognize that state forfeiture law is being circumvented. If the New Hampshire Senate passed HB 614 and Gov. Chris Sununu signs it, the new law will close a horrible loophole and ensure the critical forfeiture reform that is already enshrined in law will more fully protect the people of New Hampshire from government abuse.

Nationwide, more than 20 other states and Washington, D.C. have tightened their forfeiture laws in recent year, according to the Institute for Justice (IJ). Two of those states—New Mexico and Nebraska—have abolished civil forfeiture entirely, and replaced it with criminal forfeiture. Further legislative efforts are currently pending in at least nine other states.

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