The overwhelming majority of states, the District of Columbia, and the federal government allow law enforcement to use civil forfeiture to seize and keep your property without even charging you with a crime, much less convicting you. Worse yet, the very government officials who take your car, home, or cash often get to keep it for their own use. This arrangement incentivizes policing for profit instead of the fair administration of justice. It’s a process that badly needs reform—with the best reform being abolition. But when reform proposals are floated, the police and prosecutors hooked on the unaccountable slush fund of civil forfeiture often lobby hard to keep the goodies flowing and the oversight minimal. Nevertheless, many state lawmakers have had enough.
Earlier this year, New Mexico outlawed civil forfeiture in the state. Following that historic achievement, civil forfeiture reform has picked up momentum in state capitols across the nation. Here are some highlights:
Ohio’s House Judiciary Committee is considering House Bill 347, that would repeal civil forfeiture, leaving the state with criminal forfeiture, which requires a conviction and affords the accused property owner the usual protections of due process. A companion bill has been introduced in the Senate. The bills would guarantee that the government bears the burden of proving by clear and convincing evidence that the property is subject to forfeiture.
The bill would also limit Ohio law enforcement’s ability to circumvent the legislature’s reforms by preventing police and sheriffs from transferring seized property valued under $50,000 to federal law enforcement for forfeiture purposes where the hurdles for prosecutors are lower—only for the local police to be reimbursed later.
Senate Bill 838, introduced in May by Senator Kyle Loveless, would require a conviction before forfeiture. Upon conviction, the government would have to present “clear and convincing evidence” in civil court that the property being forfeited is linked to the crime. Under current law, it need only meet the lower burden of a “preponderance of the evidence.”
Senate Bill 838 would also address the problem of policing for profit by directing all forfeiture proceeds to the General Revenue Fund, rather than to the respective law enforcement agency, and the bill would also require a jury trial for forfeitures and removes the presumption that money found near drugs and paraphernalia is forfeitable. That’s good news, because the evidence that Oklahoma’s civil forfeiture laws are in desperate need of reform is piling up.
The next action on the bill will come after the Oklahoma legislature convenes on February 1, 2016.
New Hampshire’s pending forfeiture reform bill, House Bill 636, would also require a conviction before forfeiture. Upon conviction in criminal court, the government would have to establish by “clear and convincing evidence” in civil court that the specific property was used in or derived from the commission of the crime.
Most importantly, the bill would direct forfeiture proceeds into the state’s general fund, reducing law enforcement’s profit incentive.
Additionally, the bill strengthens protections for innocent owners, such as the suspect’s spouse, parents or neighbors, by requiring the state to show that the innocent owner did not consent to the use of his property in the suspect’s crime.
A study commission met during the interim and now recommends that the House pass these reforms. The next legislative session in New Hampshire begins on January 6, 2016.
Michigan has shown significant progress this year in rolling back civil forfeiture. On October 20, Gov. Rick Snyder signed a seven-bill forfeiture reform package, consisting of House Bills 4499, 4500, 4503, 4504, 5405, 5406, and 4507.
The reform raised the standard of proof required in civil court to forfeit property from the relatively weak “preponderance of the evidence” to the stronger “clear and convincing evidence.”
The reform also included the “Uniform Forfeiture Reporting Act,” which requires that agencies file annual forfeiture reports with the Department of State Police, which will then publish aggregated reports. The act specifies detailed requirements for the content of these reports, which should provide a much clearer picture of civil forfeiture in Michigan than has previously been available, a boon to watchdogs and researchers. Agencies that fail to report to the Department of State Police will be called out in its aggregate report.
The Wyoming Legislature’s Joint Judiciary Committee is sponsoring a forfeiture reform bill that would amend the Wyoming Controlled Substances Act.
As IJ attorney Dan Alban wrote in the Casper Star Tribune:
If enacted, the committee’s legislation would provide an opportunity for property owners to contest a seizure promptly after their property is seized, raise the standard of proof for civil forfeiture cases, allow courts to award attorneys’ fees to prevailing property owners and institute new reporting requirements for forfeiture proceeds and expenses.
Earlier this year, the legislature passed a bill that would have required a criminal conviction before forfeiture, but Gov. Matt Mead vetoed it.
— Walker Mulley
Walker Mulley is a Maffucci Fellow at the Institute for Justice