Fact Check: Idaho Governor Misleads on Civil Forfeiture

Following a widely panned veto of a bipartisan civil forfeiture reform bill, Idaho Gov. Butch Otter appeared on a local radio program yesterday and attempted to defend his decision. But in the process he made multiple misleading claims.

“It’s very alarming that the governor is so woefully misinformed about how civil forfeiture really works in Idaho,” said Institute for Justice Attorney and Idaho native Dan Alban. “The fact that the governor vetoed a bill that would have shined a light on this abusive practice speaks volumes.”

We fact-check the governor below:

Myth #1: Property Can’t Be Forfeited Without a Criminal Conviction

Reality: Idaho’s Civil Forfeiture Laws Do Not Require Criminal Convictions or Filed Charges

On KBOI’s The Nate Shelman Show (listen between 17:00 and 19:50) a constituent asked Otter if the state allows forfeiture without a conviction; the governor quickly and adamantly denied that could happen. But as several media outlets have reported, Idaho law enforcement has confiscated property without filing criminal charges against the owners.

Currently, Idaho has two separate types of forfeiture proceedings: criminal and civil forfeiture. Under criminal forfeiture (Idaho Code § 37-2801), state law explicitly requires a guilty plea or a criminal conviction before property can be forfeited to the state.  But under Idaho’s civil forfeiture laws (Idaho Code § 37-2744), there is no mention whatsoever of convictions, guilt, criminal charges or indictments.

Moreover, while criminal forfeitures proceed against the owner and as part of the criminal case, Idaho’s civil forfeiture proceedings “shall be civil actions against the property subject to forfeiture and the standard of proof shall be preponderance of the evidence.” That standard is far lower than the beyond-a-reasonable-doubt standard utilized to secure criminal convictions.

Myth #2: Forfeiture Must Be Related to a Felony

Reality: Even Misdemeanors Can Trigger Forfeiture

Earlier in the radio program, Otter also denied that misdemeanors could lead to forfeiture. Instead, he claimed that “It’s the felony that triggers the asset forfeiture.” The actual law begs to differ. Mere drug possession is a misdemeanor for many controlled substances. In turn, under Idaho’s civil forfeiture laws, cash and jewelry “found in close proximity” to drugs can be forfeited, while drug possession can trigger forfeiture for vehicles.

The bill Otter vetoed, HB 202, was intended to reform both of those practices. As the bill’s statement of purpose makes clear, HB 202 would have modified the law so that “vehicles would not be subject to forfeiture in connection with mere possession of a controlled substance,” while “property that is merely in proximity to a controlled substance is not subject to forfeiture absent a meaningful connection to a violation.”

“The governor’s comments once again underscore the urgent need for forfeiture transparency,” noted Lee McGrath, senior legislative counsel at the Institute for Justice. “Reform opponents cannot claim there is no evidence of a problem while, at the same time, block bills that would require law enforcement agencies to report what they seized, how much they gained from forfeiting property and if they even filed any criminal charges.”

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