September 28, 2017

IJ’s Litigators for Liberty are not the only ones on the frontlines to end civil forfeiture. For the past few years, our legislative team has been waging its own battles in the marble hallways of Congress and state capitols across the United States. And this year, we made important gains with 10 states reforming their laws thanks to IJ’s path-breaking work.

Fighting on multiple fronts is vital. As you will read later in this issue, the U.S. Department of Justice (DOJ) recently made it easier for federal prosecutors to forfeit more property under federal law. While this new directive is a setback for federal forfeiture reform, state legislators are moving full steam ahead to better protect private property and due process. This often includes enacting limits on federal prosecutors adopting forfeiture cases.

Since 2014, 24 states have reformed their civil forfeiture laws. IJ has been involved in almost all of these efforts, including the platinum-standard reforms in New Mexico (2015) and Nebraska (2016) that completely abolished civil forfeiture. In those states, a person must be convicted of a crime as a prerequisite to forfeiture of property. People unable to afford private attorneys receive public defenders to represent them and their property as all litigation takes place in criminal court.

This year, IJ continued its successes in the legislative sessions that ran from January to June. Meaningful protections were enacted in several states, including Connecticut and Minnesota. But the most important accomplishments were in Arizona and Colorado.

Since 2014, 24 states have reformed their civil forfeiture laws. IJ has been involved in almost all of these efforts.

On April 12, Arizona Gov. Doug Ducey signed HB 2477 into law. Working with a broad coalition, Paul Avelar of IJ’s Arizona office helped to advance the legislation, which raises the standard of proof in forfeiture litigation to clear and convincing evidence, implements new oversight of how agencies use forfeiture proceeds (including audits by the attorney general), and reverses a provision putting property owners on the hook for attorneys’ fees. Now property owners can recoup fees if they prevail in a forfeiture action.

Less than two months later, Colorado Gov. John Hickenlooper signed into law HB17-1313, a bill that bolstered transparency. IJ and the ACLU teamed up to successfully advocate for the new law, which requires the creation of a searchable database of seizures, forfeitures, criminal charges, convictions and the use of forfeiture proceeds. When the database is up and running, it will provide data to challenge law enforcement’s frequent claim that forfeiture is a valuable tool against international drug cartels. It will likely show that forfeiture is used overwhelmingly to litigate small seizures against property owners of modest means.

Most importantly, there are provisions in both new laws that limit local law enforcement agencies from benefiting from outsourcing forfeiture litigation to the DOJ. Arizona legislators included a minimum seizure amount of $75,000 before state agencies can contract with federal officials for forfeiture litigation. Colorado now prohibits state agencies from receiving a share of forfeiture proceeds from the federal government if the seizure is worth less than $50,000. The two provisions mean that approximately 90 percent of cases that would previously have been litigated under federal law will now be litigated under state forfeiture laws and not outsourced to the DOJ. These provisions thus better protect the rights of people in Arizona and Colorado.

The fight, however, is far from over and IJ stands ready to bring the battle to end civil forfeiture to even more state capitols and to Congress next session.

Also in this issue

Subscribe to get Liberty & Law magazine direct to your mailbox!

Sign up to receive IJ's bimonthly magazine, Liberty & Law, along with breaking news updates about the Institute for Justice's fight to protect the rights of all Americans.