June 2, 2015 | Commentary on Legal Issues, Rule of Law

Hogan fails on forfeiture reform

Last month, Gov. Larry Hogan vetoed a civil asset forfeiture reform bill that had been passed nearly unanimously by the State Senate. Senate Bill 528 would have closed the "equitable sharing" loophole that perversely incentivizes Maryland's law enforcement agencies to circumvent state forfeiture laws for financial gain.

Property owners caught up in the forfeiture system would have had greater due process protections, including the basic presumption of innocence. But citing the objections of the law enforcement establishment, Mr. Hogan insisted that S.B. 528 would jeopardize the state's ongoing fight against drug crime and human trafficking.

There's just one problem with that analysis: The Senate bill would do nothing of the sort.

Rather, S.B. 528 sought to rebalance a system that has become alarmingly one-sided and prone to abuse. Financial incentives built into civil forfeiture encourage law enforcement agencies to seize property, often on dubious grounds, since typically they get to keep some portion of the proceeds of their forfeitures. Meanwhile, tortuous legal processes make it exceedingly difficult and prohibitively expensive to challenge seizures when they do occur. To prevail in court, property owners typically must prove their own innocence. And if they are too poor to afford a lawyer, they must do so on their own.

The end result: a system where it is too easy to seize property from innocent people, such as Randy and Karen Sowers, the Maryland dairy farmers who were forced to fork over half of their farm's earnings to the government because of an alleged "structuring" violation. Because their business involved direct-to-consumer sales, they dealt in large amounts of cash, which a bank teller had advised them to deposit in increments of less than $10,000 to avoid government scrutiny. But that act in itself caught the attention of the IRS, which accused them of trying to skirt currency transaction reporting laws. Despite the fact that the couple was never accused of earning the money illegally, they were forced to pay the government nearly $30,000 as part of a settlement agreement.

S.B. 528 would have dealt with some of these iniquities. It shifted the burden of proof to the state, so that property could not be forfeited unless the state demonstrated that a crime had taken place with the owner's knowledge. It also would have restricted cash forfeitures to amounts greater than $300, unless the money is "directly connected to the unlawful distribution of a controlled dangerous substance." Finally, and crucially, the bill would have closed the equitable sharing loophole, which promises the state and local governments a cut of the proceeds of any property transferred to the federal government for forfeiture under federal law.

Equitable sharing rewards state and local agencies that circumvent their own, more restrictive, forfeiture laws, and Maryland is the perfect example of why that loophole should be closed. Last year, Maryland law enforcement agencies received $6.5 million in equitable sharing payments, despite the fact that under Maryland law, these agencies are prohibited from directly profiting from forfeitures.

S.B. 528 was not perfect. It did not, for example, raise the burden of proof beyond a mere "preponderance of the evidence" in forfeiture cases. But it would have gone a long way toward preventing what happened to the Sowers family from happening to other innocent Marylanders.

Yet the bill was vetoed, ostensibly because forfeiture reform would have proven too serious a hindrance to the enforcement of the state's laws. This argument suggests that uncovering evidence of criminal conduct and tying it to property is so difficult, the government can win forfeiture cases only when the evidentiary burdens are low and the deck is stacked in its favor.

Greater due process protections would certainly make forfeiture a more intensive process for the government. But if forfeiture is truly an important and effective crime-fighting tool, the higher cost of pursuing forfeiture will outweigh the benefit only in cases based on little or no evidence. As a consequence, the number of successful forfeitures may fall post-reform, but this does not automatically mean that criminals are getting off scot-free; to assume that would be to assume that every seizure is legitimate and every property owner a criminal, facts we know to be empirically false.

And if stopping criminals is the goal, why are criminal charges filed in so few civil forfeiture cases?

Policymakers should not be distracted by straw man arguments. Forfeiture reform is not about helping criminals or hindering the legitimate activities of the law enforcement community. It is about protecting the innocent, stopping abuses and realigning the incentives of law enforcement agencies.

Hopefully, next year, Maryland will get another chance to join Washington, D.C., Minnesota, Montana and New Mexico in reforming forfeiture laws to protect innocent property owners.

- Jason Snead is a researcher 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 Baltimore Sun