J. Justin Wilson
J. Justin Wilson · July 15, 2020

Civil forfeiture is one of the biggest threats to property rights in South Carolina. It allows law enforcement to take cash, cars, homes and other property from South Carolinians without so much as charging —let alone convicting—the owner with a crime and then profit from the proceeds. Now, the Institute for Justice (IJ)—a nonprofit, public interest law firm—is representing a property owner in an ongoing forfeiture lawsuit to ask the South Carolina Supreme Court to end the controversial practice once and for all.

Last year, prosecutors seized and then tried to permanently take Travis Green’s money. The judge in that case asked both parties to address whether South Carolina’s forfeiture statutes pass muster under the federal and state constitutions. After hearing both sides, the judge ruled that those statutes violate people’s rights to due process and to be free from excessive fines. As a result, the judge concluded that officials couldn’t try to forfeit Green’s or anyone else’s money in his judicial circuit. Prosecutors quickly appealed to the South Carolina Supreme Court, which prompted the Institute for Justice to get involved.

The judge made the right call in striking down South Carolina’s forfeiture statutes. Under those laws, prosecutors don’t have to prove owners did anything wrong. Instead, once they show probable cause that the owner’s property is somehow connected to a crime, the owner must prove his or her own innocence. That can take months, even years, since South Carolina doesn’t give owners prompt hearings. Unsurprisingly, that delay leads many owners to give up or settle with police and prosecutors for pennies on the dollar.

“It’s bad enough that under South Carolina’s civil forfeiture laws, owners must prove their own innocence or lose their property forever,” said Dan Alban, senior attorney at the Institute for Justice and counsel for respondents in Jimmy Richardson v. $20,771. “But it’s even worse when the government doesn’t even have to give those owners their day in court.”

But the most pernicious aspect of South Carolina’s forfeiture system is that when police and prosecutors prevail, they get to sell the owner’s property and keep at least 95% of the proceeds for their agencies. As a report by the Institute for Justice demonstrates, the financial incentive posed by civil forfeiture lures officials away from the impartial pursuit of justice and toward policing for profit.

A recent series of articles in the Greenville News shows how, in just three years, South Carolina law enforcement agencies seized and kept more than $17 million from citizens. As the reporting by the News’ Nathaniel Cary indicates, this isn’t the result of pulling over a few kingpins: Over half of cash seizures are for less than $1,000, and one-third involve less than $500. To pull in that cash, South Carolina law enforcement agencies have organized large-scale events like “Operation Rolling Thunder,” where they give trophies to the officers who seize the most property. And those agencies have spent forfeiture proceeds in questionable ways: One sheriff spent over $11,000 to send himself, his chief deputies and their wives on an all-expenses paid trip to Reno, Nevada. Another officer decided he wanted to keep the Ford Raptor he seized as his official car, so he spent an additional $20,000 in forfeiture funds to pay off its loan.

“Recent reporting has exposed the terrible, real-world consequences of South Carolina’s forfeiture laws,” said Robert Frommer, a senior attorney at the Institute for Justice. “The ‘eat what you kill’ financial incentive these laws create causes officials to violate people’s constitutional rights by treating them like ATMs.”

South Carolina’s forfeiture laws also undermine official accountability. The law requires that forfeiture proceeds be put into accounts dedicated exclusively to seizing and forfeiting agencies. Those agencies typically don’t have to ask anyone for permission before they spend the money in those accounts. And since agencies don’t need to report to the state how much they have spent in forfeiture proceeds, or on what, the true scale of South Carolina’s “policing for profit” problem is impossible to measure.

“Increasingly, law enforcement agencies have come to rely on fines, fees and forfeitures to fund themselves rather than having to answer to elected officials for their budgets,” said Scott Bullock, president and general counsel of the Institute for Justice. “This is not just an ominous trend; it is a dangerous one. We hope the South Carolina Supreme Court establishes that the U.S. and South Carolina Constitutions secure meaningful protections for private property and limit the government’s ability to turn law enforcement agencies into unaccountable revenue generators.”

The Institute for Justice is working with local counsel Alex Hyman of the The Hyman Law Group of Conway, SC.