April 1, 2015 | Commentary on Civil Justice Reform, Overcriminalization

Both parties in New Mexico and elsewhere see bad problems in good-intentioned civil forfeiture laws

On the last day of its session, the New Mexico Legislature unanimously passed a landmark bill to limit civil forfeiture. Now, the bipartisan House Bill 560 is on the desk of Gov. Susana Martinez, a Republican, and state residents are waiting to see whether she will sign it.

Civil forfeiture has a noble goal: relieving criminals of their ill-gotten gains and the instrumentalities of crime by going after this illicit property directly. The bill may be good in theory, but civil forfeiture in practice has become a system stacked against property owners, where guiltless parties are forced to prove their innocence if they want to keep what is rightfully theirs.

In response, the New Mexico Legislature has passed some significant changes to the state’s forfeiture laws. Criminal convictions would be required before property could be forfeited. Once a conviction is won, the state would have to prove that the property is directly traceable to, and instrumental in, committing the crime. The state also would have to prove, by clear and convincing evidence, that an owner had “actual knowledge” that the property was used to commit the crime.

Everybody knows the old aphorism, “the punishment must fit the crime.” With forfeitures, this is not always the case. In Philadelphia, Chris and Amy Sourovelis nearly lost their family home because their son sold $40 worth of drugs to an undercover cop. A crime? Yes. Worth rendering a family homeless? No.

Under the New Mexico proposal, the state would be required to prove that disparities such as this do not exist in the forfeiture cases they pursue. Property owners can challenge a successful forfeiture as unconstitutionally excessive by demonstrating that it is “grossly disproportional” to their crime, the same standard adopted by the Supreme Court in U.S. v. Bajakajian.

Once property is forfeited, any proceeds are directed to the New Mexico general fund, avoiding the conflicts of interest that have plagued forfeiture.

Equally important to what New Mexico’s legislation does is what it does not do: interfere with forfeitures of property that are clearly and demonstrably linked to proven criminal activity. Last year, when the D.C. Council overhauled forfeiture, local law enforcement officials protested that greater legal protections for property owners would make executing forfeitures virtually impossible.

Council members in the District of Columbia rejected this claim, and with good reason. Arguments like this imply that many forfeiture cases lack significant supporting evidence and that their success relies on a system that is stacked against property owners. Rebalancing that system will deter law enforcement from seeking forfeiture only in cases where it lacks the evidence necessary to tie property to crime.

The District overhauled a system that valued expediency over evidence. New Mexico would be well advised to follow suit.

Protections at the state level are often easily circumvented in forfeiture cases when state and local agencies take advantage of a federal program called Equitable Sharing. Cases transferred to the federal government are prosecuted under federal law even though a state or local agency is carrying out the seizure. HB 560 would bar agencies from transferring property when the effect of a transfer would be to circumvent state law.

New Mexico is the latest state to consider trimming back its civil forfeiture laws. Minnesota overhauled its forfeiture laws last year. This month, the Maryland House of Delegates overwhelmingly voted to do the same. In all, more than 20 states have asset forfeiture measures on their dockets, and Congress is taking steps toward limiting federal forfeiture.

New Mexico’s unanimous legislative push makes it clear that this is a bipartisan issue. Liberals and conservatives, Republicans and Democrats agree: Forfeiture needs to be reined in.

 - Jason Snead is a research associate in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

About the Author

Jason Snead Policy Analyst
Edwin Meese III Center for Legal and Judicial Studies

Originally appeared in The Washington Times