J. Justin Wilson
J. Justin Wilson · January 24, 2018

Late Tuesday, two Alabama lawmakers filed legislation that would completely eliminate the state’s civil forfeiture laws, which let the government take and keep property without ever filing criminal charges, and replace it with criminal forfeiture. Currently, 14 states only 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.

“Civil forfeiture is an assault on America’s deeply cherished values of due process and private property rights,” noted Institute for Justice Senior Legislative Counsel Lee McGrath. “This bill will ensure that only convicted criminals—and not innocent Alabamians—lose their property to forfeiture. No one acquitted in criminal court should lose his or her cash, car, or home in civil court.”

Sponsored by Rep. Arnold Mooney and Sen. Arthur Orr, their legislation would:

  • End and replace civil forfeiture with criminal forfeiture;
  • Require a felony conviction (or plea agreement) as a prerequisite to forfeit property. The requirement would be waived in cases where the owner has died, was deported, or fled jurisdiction after being arrested and released on bail;
  • 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, including for forfeiture expenditures.

Just as critical, their bill would close a federal forfeiture loophole that would undermine all the protections that this legislation will establish. 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. Between 2000 and 2013, an IJ report found that Alabama agencies received more than $75 million through equitable sharing. 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.

To prevent law enforcement from circumventing the new reforms, the bill would ban Alabama agencies from participating in adoption and prevent law enforcement from receiving equitable-sharing funds, unless the forfeited property is worth more than $100,000. That limit would protect the overwhelming majority of Alabamans facing federal forfeiture: 90 percent of all forfeitures made through equitable sharing involved property valued at under $100,000, according to data analysis by the Institute for Justice.

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

Orr and Mooney’s legislation has earned the support of a wide, bipartisan coalition, including the Alabama Appleseed Center for Law & Justice, the Alabama Policy Institute, the Drug Policy Alliance, the Institute for Justice and the Southern Poverty Law Center. Since 2014, 25 states and the District of Columbia have tightened their forfeiture laws, while 10 other states are currently considering reforms.