J. Justin Wilson
J. Justin Wilson · March 21, 2018

New legislation that would completely eliminate the state’s civil forfeiture laws, which let the government take and keep property without ever filing criminal charges, passed the Minnesota House Civil Law and Data Practices Policy Committee late Tuesday. Authored by Rep. Jim Klobach and Sen. Scott Newman, HF 3725 and SF 3419 would instead replace civil forfeiture with criminal forfeiture, which only allows forfeiture in criminal court, after a conviction.

“Civil forfeiture is one of the greatest assaults on the right to due process and private property,” said Lee McGrath, managing attorney of the Institute for Justice Minnesota Office. “The legislation announced today would end an immense injustice and would preserve law enforcement’s power to confiscate ill-gotten gains from convicted criminals.”

Spurred by abuses of the state’s forfeiture laws (particularly by the now defunct Metro Gang Strike Force in 2009), lawmakers passed a bill in 2014 that requires a conviction in criminal court before someone’s property could be forfeited in civil court. But the reform did not apply to “administrative” forfeitures, or cases where the owner could not or did not challenge the forfeiture case in civil court.

According to the State Auditor, 95 percent of drug-related forfeitures and 97 percent of DUI-related forfeitures were administrative. Statewide, the average forfeiture was just under $1,700.

“Far too often, it costs more to hire a lawyer to fight for the seized property than what the property itself is actually worth,” explained IJ Legislative Counsel Meagan Forbes. “This system stacks the deck against innocent Minnesotans and forces many owners to walk away.”

Newman and Klobach’s legislation would enact sweeping, comprehensive reforms that would:

  •         End both civil forfeiture and administrative forfeiture, and replace them with criminal forfeiture;
  •         Re-direct forfeiture proceeds away from law enforcement and towards victim restitution, crime prevention or the general fund. This would eliminate the incentive to “police for profit.” Since 2000, forfeiture has yielded over $90 million in proceeds;
  •         Restore the presumption of innocence by shifting the burden of proof from innocent, third-party owners onto the state—where it belongs;
  •         Raise the standard of proof in forfeiture litigation to clear and convincing evidence; and
  •         Institute new comprehensive reporting requirements.

Just as critical, HF 3725 and SF 3419 would close a federal forfeiture loophole that could undermine the protections established by the bill. Through a program called “equitable sharing,” state and local police and prosecutors collaborate with a federal agency or joint task force, forfeit property under federal law, and receive up to 80 percent of the proceeds.

This loophole was further widened last summer when Attorney General Jeff Sessions revitalized an equitable sharing program called “adoption,” which had been strictly curtailed during the previous administration. Nearly one-third of the money Minnesota agencies received through equitable sharing came through the adoption program.

If enacted, the reform would ban adoptive seizures and forfeitures and prevent Minnesota law enforcement from collecting equitable-sharing funding, except for cases involving seized property worth at least $100,000. That limit would protect the overwhelming majority of Minnesotans facing federal forfeiture: In recent years, 95 percent of all forfeitures made through equitable sharing involved property valued at under $100,000, according to data analysis by the Institute for Justice. And half of all forfeitures were under $9,275.

“By closing this loophole, the bill would preserve the state’s sovereignty from federal overreach,” McGrath noted. “Minnesota agencies could still cooperate with the federal government but the law wisely limits that collaboration to major cases.”

Today, 14 states (including Minnesota) allow forfeiture after a criminal conviction in most or all forfeiture cases. Among those states, just three—North Carolina, New Mexico and Nebraska—have abolished civil forfeiture outright. Since 2014, 25 states and the District of Columbia have tightened their forfeiture laws, while over a dozen other states are currently considering reforms.