Interest in reforming civil asset forfeiture has grown
March 15, 2019
Interest in reining in civil asset forfeiture, whereby law enforcement authorities can confiscate money and property, has been growing.
Recently the U.S. Supreme Court ruled that the value of property taken by a state through forfeiture cannot be excessive. The Supreme Court left the definition of “excessive” to lower courts to determine.
Government authorities have often used civil asset forfeiture to take property and cash from people without charging or convicting someone of a crime.
There are two levels of civil asset forfeiture: state and federal. States often have more rules restricting asset forfeiture than apply to federal forfeitures. In those cases, states can have federal authorities adopt the case and in return receive equitable-sharing payments to spend as they wish.
There was a bill introduced by Sen. Rand Paul, R-Ky., and Rep. Tim Walberg, R-Mich., in 2017 to rein in civil asset forfeiture.
The FAIR (Fifth Amendment Integrity Restoration) Act was introduced in the U.S. Senate as S642 and House of Representatives as HR1555.
The bill would have eliminated equitable sharing of forfeited funds. The money would go into the general fund instead of one set up for the use of the federal authorities. It also would have required “clear and convincing evidence” that the property was used in a criminal action instead of the less-stringent “preponderance of the evidence” standard. The Department of Justice could have been required to compile and publish the percentage of its seizures that were subjected to civil and criminal asset forfeiture.
In the Obama administration, Attorney General Eric Holder restricted the practice of federal authorities adopting state cases, forfeiting property under federal law, and divvying up the proceeds with the state.
In 2015, Holder said the limits on seizures were meant to “take the profit out of crime and return assets to victims, while safeguarding civil liberties.”
Attorney General Jeff Sessions in 2017 rescinded his predecessor’s policy change and revived the former policy. Sessions promised the federal government would not adopt seized property unless the state or local agency involved shows the seizure was justified by probable cause.
Recent state action of civil asset forfeiture
State legislators have responded in recent weeks to concern about civil asset forfeiture. Below are some of the developments in recent weeks.
The trend in state legislation has been to require a conviction for forfeiture proceedings. Also, legislation has restricted forfeiture for amounts less than a certain level ranging from $40,000 to $100,000, and allowing federal forfeiture laws to be used on amounts greater than that amount. Legislation also has addressed reporting requirements and raising the proof of evidence required for forfeiture.
The Alabama District Attorneys Association announced March 1 the creation of a voluntary Alabama Forfeiture Accountability System. Local district attorney’s offices are supposed to track the date and location of property seizures, if property owners were represented by an attorney, final disposition of a case, and which agencies received proceeds.
Last year, the Alabama House considered HB287 and the state Senate considered companion bill SB213. The bills did not progress out of committee. The bills would have required a conviction or a plea deal for property to be taken through forfeiture. Only cases involving $100,000 in cash and other property could have been adopted by federal authorities.
Arkansas Senate passed SB308 on Feb. 12 to end civil asset forfeiture in most Arkansas cases and replace it with a criminal procedure. A circuit court judge must rule on a petition by a prosecuting attorney for cases to be transferred to federal jurisdiction. The Arkansas House now gets to consider the bill.
Hawaii state senators are considering SB1467, which if enacted would a conviction of a crime for law enforcement agencies to take private property through civil forfeiture cases.
The bill would raise the standard of proof the state must meet in order for property to be forfeited from a “preponderance of the evidence” to “beyond a reasonable doubt” that owners consented to or possessed knowledge of the crime that led to the seizure of their property. Asset forfeiture cases would have to be presented in court and not done administratively.
It also would direct proceeds from a civil forfeiture to the general fund for public education purposes. It would also prohibit the state attorney general from seizing property without a judge’s consent.
Rep. Scott Turner (R-Holly Springs) introduced HB278 on Feb. 12 that would require prosecutors to get a criminal conviction before moving forward with asset forfeiture proceedings. HB278 would prohibit law enforcement authorities from passing cases to the federal government in order to circumvent the state forfeiture process in most situations.
Turner sponsored a similar bill in 2017.
A bill passed the Michigan state Senate in February, SB2, would prohibit civil asset forfeiture of property associated with a substance-related crime unless there is a conviction or plea agreement. SB2 also limits forfeitures to property valued at $50,000 or less. The bill was introduced by Sens. Peter Lucido, R-Shelby Township, and Rosemary Bayer, D-Beverly Hills.
Rep. Shamed Dogan, R-Ballwin, introduced in February a bill (HB444) that bans confiscating assets from someone unless the person is convicted of a crime. It also prohibits a transferring seized property for forfeiture under federal laws unless it includes $100,000 in cash.
This bill was introduced in 2018 as HB1501.
New Jersey is considering legislation to require a conviction for the state to take by forfeiture cash of $1,000 or less or other property valued at $25,000 or less. The state must establish by a “clear and convincing evidence” that the property owner was involved in or aware of the unlawful activity and had done all that could reasonably be expected to prevent the proscribed use of the property in the illegal activity. Other legislation requires the state attorney general to compile a quarterly report of property seized, when and where it was seized, charges brought in connection with the seizure and other data.
A bill to reform North Dakota asset forfeiture was introduced in February and referred to the judiciary committee. If the bill becomes law, forfeiture proceedings couldn’t be initiated until the owner of the property has been convicted of or pled guilty to a crime or has fled. A vehicle valued at less than $2,000 may not be forfeited unless it has been modified to hide contraband. Cash of $750 or less may not be forfeited nor can homestead property. Property owners may challenge a forfeiture that may be unconstitutionally excessive. The state Senate did not act on a similar bill in 2017.
Rep. Alan Clemmons, R-Myrtle Beach, introduced a bill in February in the South Carolina House to eliminate civil asset forfeiture in South Carolina in response to an investigative series of articles by The Greenville News. Instead of civil asset forfeiture, the bill creates criminal asset forfeiture. By the Asset Forfeiture and Private Property Protection Act (H3968), a forfeiture case would be tried only after a person is convicted of a felony. A property owner could petition the court to challenge excessive forfeiture amounts. The burden of proof would shift to the state to show by preponderance of evidence that the owner had knowledge the property was being used for a criminal act.
Rep. Terry Canales, D-Edinburg, filed HB182 in November for the 2019 legislative session. The bill would raise the burden of proof prosecutors must meet to take property by forfeiture from “a preponderance of the evidence” to “clear and convincing evidence.” The state would need a conviction or plea deal before taking property through forfeiture. The state could not kick cases to federal jurisdiction unless the value of the seized property exceeds $50,000 or if a state attorney determines the case is too complex, involves interstate commerce, or the property may only be forfeited under federal law.
Older state action on civil asset forfeiture
Below are some changes in civil asset forfeitures at the state level in recent years that are older than a few weeks.
Rep. Tammie Wilson, R-North Pole, introduced legislation in 2016 to reform civil asset forfeiture. Her bill would have required an individual to be convicted of a crime before forfeiture proceedings could proceed. It also would have required proceeds from forfeiture cases go to the state’s general fund. Her bill, however, was replaced with a stripped-down version in committee. Wilson also introduced an asset forfeiture reform bill in 2017.
In 2017, Arizona passed a law prohibiting state law enforcement agencies from transferring a case to federal agency unless the property is valued at $75,000 or more. Agencies also must report the value, type and date of a property seizure, if any criminal charges were filed, and the final disposition of the seized property.
Gov. Jerry Brown signed into law a bill to limit civil asset forfeiture in the state in 2016. It went into effect Jan. 1, 2017.
The new law requires a criminal conviction before agencies can receive equitable-sharing payments from the federal government on forfeited real estate, vehicles, boats and cash valued at under $40,000. It also raises the threshold to take seized cash through forfeiture under state law from $25,000 to $40,000.
In 2017, Colorado enacted HB1313, which requires biannual reporting of the type of property seized, place of the seizure, criminal charges filed in connection with the seizure, if the seizure was contested, and final disposition of the property. The info must be available in a public database. Agencies still get to keep half of what they confiscate, but they have to report how forfeiture proceeds are spent and apply for a grant for that amount. Property must be valued at more than $50,000 to be adopted by federal jurisdiction.
Last year, Connecticut enacted a law requiring seized property must be returned to its owner if prosecutors do not secure a guilty verdict, a plea bargain or a dismissal from finishing a pretrial diversion program. Law enforcement authorities still get to keep proceeds from forfeited property and can take advantage of the federal equitable-sharing program.
Last year, Delaware legislators introduced SB60 to require a criminal conviction before prosecutors could proceed with an asset forfeiture. Sen. Colin Bonini, R-Dover, introduced the bill with 19 co-sponsors. It has not moved out of the Senate Judicial and Community Affairs committee.
A law enacted in 2016 requires law enforcement officials to arrest and charge suspects before seizing most property using civil asset forfeiture. The seizing agency must pay a $1,000 filing fee and put up a $1,500 bond, which will go to the owner should he or she prevails. Law enforcement must prove “beyond a reasonable doubt” that seized property is linked to a crime. Law enforcement agencies also must report detailed information about forfeitures, including receipts and expenditures.
A bill to reform civil asset forfeiture in Idaho was passed by with strong bipartisan support in the Senate and House in 2017 but vetoed by Gov. Butch Otter, who said the measure was a “solution in search of a problem.”
The bill, HB202, would have required every law enforcement agency in the state to compile information on the property seized in each case, details of any related criminal case, and the disposition of the forfeiture proceeding to be stored by the county prosecutor for seven years. HB 202 also would have prevented the seizure of cash from people who haven’t been charged with a crime.
Gov. Otter cited law enforcement opposition to the bill. Otter said there was “no evidence to suggest” a problem with the state’s system of civil asset forfeiture. He called it “a classic case of a solution in search of a problem” in his veto letter.
On Jan. 1, 2018, Illinois enacted HB303, a civil asset forfeiture reform bill. The law shifted the burden of proof from the property owner to the government. It increased the burden of proof from “probable cause” to “preponderance of the evidence.” Also, owners whose property was seized no long have to pay a bond equal to 10 percent of the value of the seized property before a case is heard by a judge.
There are new data collection requirements, with the information collected by the Illinois State Police and posted online. Small sums of cash are not subject to forfeiture. In addition, mere possession of a small amount of drugs is no longer a legal basis for forfeiture.
The Iowa Supreme Court ruled last May that officers can’t require people to answer questions about the seized property as a condition for its return. According to a Des Moines Register article, the decision also requires courts to decide whether law enforcement properly and legally seized items before granting a claim against a person’s property. In addition, it prohibits prosecutors from dropping a forfeiture case just before a court hearing to avoid paying legal fees incurred by the people trying to get their property returned.
In 2017, Iowa enacted a law that shifted the burden of proof from the seized property’s owners to law enforcement and prosecutors. SF446 also raised the standard of proof to “clear and convincing” and implements record-keeping requirements.
The Register published a report in 2016 detailing the increase of civil asset forfeitures, involving $55 million in cash since 1985 and more than 4,200 vehicles. In many instances, no criminal charges were filed against the person whose property was seized.
Kansas passed a law in 2018 requiring the Kansas Bureau of Investigation to create a list of seizures, include type of property, its estimated value, and whether related criminal charges were filed. The information must be posted to a public website. Compliance is required by Feb. 1, 2020.
The Maine Beacon last year reported that the state’s law enforcement agencies were not depositing forfeited funds into the state general fund. Also, state law enforcement agencies are also failing to account for property and cash forfeited from drug prosecutions as required by Maine law.
A bill to require a criminal conviction in order for property to be taken through forfeiture was introduced in 2017 but no action was taken on it.
In 2016, Maryland enacted asset forfeiture reforms. The law forbids the transfer of seized cash to federal agencies unless the amount seized is more than $50,000.The standard of proof for seizing property was raised to “clear and convincing evidence.” The law prohibits cash forfeitures for simple drug possession cases. Property owners are to get receipts for property taken and now have recourse.
Companion bills HF3725 and SF3419 were introduced in 2018 to reform asset forfeiture. They did not make it out of committee. The bills would have required a criminal conviction for the state to take someone’s private property through forfeiture. Also, proceeds from forfeitures would have to go into the state general fund, and there was recourse for a property owner to have a judge consider if his or her property should be forfeited.
Mississippi enacted asset forfeiture reform in 2017. The law requires law enforcement agencies to report the location of each forfeiture, criminal prosecution taken against the property owners, the value of the property and its deposition. This information is to be published on a website maintained by the Mississippi Bureau of Narcotics. A county or circuit judge has to issue a civil seizure warrant within 72 hours (not counting holidays or weekends) based on the probable cause provided by the prosecutor.
Since 2016, Nebraska requires a criminal conviction to forfeit property, according to the libertarian watchdog organization the Institute for Justice. Property owners must be convicted of an offense involving illegal drugs, child pornography or illegal gambling to lose their cash, vehicles, firearms or real estate. Nebraska requires requiring the government to tie property to a crime “beyond a reasonable doubt” unless the seizure was related to gambling, when the standard drops to “preponderance of the evidence.” Law enforcement agencies get to keep 50 percent of the proceeds from forfeiture.
A bill was introduced in 2017 by Sen. Don Gustavson that would have required a criminal conviction for property to be forfeited. The bill did not progress.
New Hampshire enacted civil asset forfeiture reform in 2016. Maine now requires a criminal conviction or plea agreement before law enforcement can seize an owner’s property, according to The Daily Signal, which is published by the Heritage Foundation. The required standard of proof has been raised to “clear and convincing evidence.” Also, the attorney general must provide detailed accounting of how law enforcement agencies use funds collected through forfeiture. The state must prove that a property owner “was a consenting party to the crime.” All forfeiture proceeds are supposed to go into the state general fund. There are no restrictions, however, on having cases adopted by federal agencies and law enforcement agencies getting a cut.
Since July 2015, Montana law enforcement officers must convict a property owner of a crime before going through forfeiture proceedings. The law also raises the legal threshold for forfeiture in the event of a conviction, requiring police to present “clear and convincing evidence” that the seized property is connected to criminal activity. Montana law enforcement agencies can, however, use federal laws to circumvent state law. Montana authorities also are not required to track or publicly report forfeiture activity or how the funds are spent.
In 2015, New Mexico abolished civil forfeiture. Law enforcement can only forfeit property after a criminal conviction. Law requires all forfeiture money to be deposited in the general fund.
Last year, the Washington state House passed HB2718. It has been reviewed in the Senate and returned to the House. If the bill became law, seizing agencies must record what was seized and when, value of the property and net proceeds to the law enforcement agency. A report to the state treasurer would be required on how proceeds were used. The state general fund would get 10 percent of net forfeiture proceeds.
Last year, Wisconsin enacted legislation requiring police or prosecutors to obtain a criminal conviction before property held by individuals accused of committing a crime can be forfeited. The law requires a court to order the return of any seized property if no charges have been issued within six months after it was seized. Any property involved in a forfeiture action must be returned to the owner within 30 days of an acquittal or dismissal of the charge.