Civil Forfeiture Laws Often Enable Theft. Why These State Reforms Are Good News for Property Owners.

COMMENTARY Economic and Property Rights

Civil Forfeiture Laws Often Enable Theft. Why These State Reforms Are Good News for Property Owners.

Jun 15th, 2017 5 min read
COMMENTARY BY
Jason Snead

Policy Analyst, Meese Center for Legal and Judicial Studies

Jason Snead is a policy analyst in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.

Civil asset forfeiture is a nationwide problem, and states across the country are continuing to tackle it.

Just last week, two states took significant steps to further enhance protections against unjustifiable and abusive seizures of cash and property via civil asset forfeiture laws.

On Friday, Colorado Gov. John Hickenlooper signed HB 1313 into effect, bringing greater transparency and accountability to the process.

Meanwhile, the Connecticut Legislature sent HB 7146 to the desk of Gov. Dannel Malloy. The bill proposes to make Connecticut the 14th state to require a criminal conviction before seized assets can be forfeited.

The developments in Denver and Hartford are proof that the nationwide effort to reform civil asset forfeiture laws is alive and well. Indeed, more than 20 states have reined in the practice in recent years.

This is an amazing reversal of a decadeslong trend, beginning in the 1980s, that saw state and federal legislators eagerly expand the reach and scope of law enforcement officials’ power to seize cash, cars, and homes.

Initially, the focus of forfeiture was limited to the assets and ill-gotten gains of the worst-of-the-worst offenders: drug kingpins, criminal organizations, and the money launderers that facilitated their illicit dealings.

Today, though, more than 400 federal laws and numerous state laws authorize property seizures for all manner of crimes. The most common targets of forfeiture are no longer kingpins—they are small amounts of cash alleged to be “drug proceeds.”

Case in point: Data compiled by the Reason Foundation and the Yankee Institute for Public Policy reveal that in Connecticut in 2016, the median value of forfeited property was just $570.

Typically, no criminal charges need be filed, nor convictions obtained, to permanently strip someone of his life savings or his family’s home.

Making matters worse, because these cases are civil actions targeting property, an owner who opts to fight a seizure in court faces a tortuous process that is stacked against him from the beginning.

Long odds and the high cost of an attorney combine to dissuade many from challenging the seizure of their property, particularly when the value of what was taken is less than the cost of counsel.

Law enforcement entities, meanwhile, reap significant windfalls from successful forfeiture cases.

Empowered to keep and spend forfeited cash and the proceeds of the sale of forfeited property, police, sheriffs, and prosecutors’ offices have collectively generated billions of dollars in revenue—money that can typically be spent with little accountability and oversight.

This profit incentive has been roundly criticized for not only enticing officers to seize property in highly dubious cases, but encouraging some, such as one Oklahoma sheriff, to let criminals go free in exchange for their money.

Colorado’s Reforms

In Colorado, HB 1313 adopted provisions to rectify the opacity of the forfeiture process by introducing sweeping and mandatory reporting requirements for law enforcement agencies engaged in forfeiture activities.

Going forward, agencies will have to file biannual reports chock full of details about their forfeiture activities.

Not only will they have to account for what they seize and why, officials will have to track the disposition of any corresponding criminal cases, and how they spend any resulting proceeds.

Gov. John Hickenlooper signed Colorado’s civil forfeiture reform bill on June 9. (Photo: Yuri Gripas/Reuters/Newscom)

Colorado’s new law also closes a much-criticized loophole that allows state and local law enforcement agencies to turn to federal law as a means of bypassing state forfeiture laws that are more protective of property rights or restrictive in how proceeds may be spent.

By partnering with federal officials, state and local agencies can get up to 80 percent of any resulting proceeds through the federal equitable sharing program. These payments go directly to the law enforcement entity and must be spent for “law enforcement purposes.”

In other words, equitable sharing payments are beyond the oversight powers of any state or local legislature.

In Colorado, more than $52 million in largely unaccountable equitable sharing payments were routed to state and local agencies between 2000 and 2013. HB 1313 at least partially closes this loophole.

Going forward, police and sheriffs can receive these payments only if they stem from a case where the “net equity value of the property and currency seized in a case is in excess of fifty thousand dollars.”

Connecticut’s Reforms

The Constitution State, meanwhile, is on the verge of becoming the latest to require a criminal conviction before property can be forfeited.

HB 7146, which passed out of the Legislature unanimously, would require the return of seized property unless a criminal proceeding produces either “a plea of guilty or nolo contendere” or “a guilty verdict after trial to a forfeiture-eligible offense.”

The state would then be required to institute a civil forfeiture proceeding within two weeks of the conclusion of the criminal case, and would have to demonstrate that the property or currency at issue is directly tied to the criminal offense, whether as facilitating property or the proceeds of crime.

Connecticut’s civil forfeiture reform bill passed both houses unanimously, and now awaits Gov. Dannel Malloy’s signature. (Photo: Miguel Juarez Lugo/Zuma Press/Newscom)

More Remains

Both Colorado and Connecticut already had better than average forfeiture laws. Both states required proof by clear and convincing evidence in civil forfeiture cases—the standard advocated by The Heritage Foundation and adopted by a growing number of states.

This most recent round of reforms will further improve the situation facing innocent property owners, but it is far from the end of the road. More remains to be done, including eradicating the profit incentive in forfeiture law at both the state and federal level.

Fortunately, there still seems to be an appetite to tackle the issue. In a written statement issued after he signed HB 1313, Hickenlooper established a task force to “develop further reforms and improvements to civil asset forfeiture in Colorado.”

In the final analysis, reforms like those adopted in Colorado and on the cusp of enactment in Connecticut are about preserving the rights of innocent property owners, not about hindering the ability of law enforcement officials to do the difficult, dangerous, and laudable work of keeping our communities safe.

But, as Hickenlooper aptly put it, “If the civil asset forfeiture process is to serve these goals, it must operate transparently and with adequate protections for all Coloradans.”

One day soon, such protections may be in place for all Americans.

This piece originally appeared in The Daily Signal