Tuesday, October 27

Status Report: Taking on Civil Asset Forfeiture

Written by Mike Maharrey

Civil asset forfeiture is nothing more than legalized, institutionalized, government-sanctioned theft.

It is the process by which governments confiscate a person’s property, generally after asserting it was involved in criminal activity or that it was the proceeds from a crime. Police often seize property as part of the investigative process. In many states, they don’t even have to make an arrest. For instance, officers might let a person go but seize a car they suspect was used to facilitate a drug deal or cash they thought somebody got from selling drugs.

When prosecutors initiate a civil asset forfeiture case, property owners must prove the property wasn’t involved in criminal activity. This flips due process on its head, forcing the owner to establish the property’s “innocence.” This shifts the burden of proof from the state to the citizen.

Police departments often get a cut of asset forfeiture proceeds, in some cases keeping 100 percent of the haul. This has led many to dub the process “policing for profit.”

Both state and federal law enforcement agencies engage in asset forfeiture, but many states have moved to reform the process. Several states have ended civil asset forfeiture altogether, replacing it with a criminal forfeiture process that requires a conviction before proceeding with forfeitures. Some jurisdictions have also addressed the policing for profit motive by barring law enforcement agencies from keeping asset forfeiture proceeds. Instead, they must be deposited in the general fund or some other non-law enforcement related account.

Equitable Sharing

Even with the movement to end civil asset forfeiture at the state level, police have a federal loophole they can use to continue cashing in even when states reform their systems and do away with the monetary incentives. “Equitable Sharing” incentivizes prosecutors to bypass more stringent state forfeiture laws by passing cases off to the federal government. 

It works like this: state and local police work the case and then claim it involves federal law or crosses into federal jurisdiction. Through a process known as “adoption,” the federal government prosecutes the forfeiture case under federal law and splits the proceeds with the local police. Through this program, state and local law enforcement agencies receive up to 80 percent of the take.

In 2018, the federal government distributed over $400 million to state and local law enforcement agencies. That was up from $295 million the previous year.

But states can simply opt out of equitable sharing — and many have.

Until a few years ago, California was a prime example of how equitable sharing undermines state-level restrictions on civil asset forfeiture. The state has some of the strongest restrictions in the country, but state and local police were circumventing the state process by passing cases to the feds and accessing the equitable sharing program. 

According to a report by IJ, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. In 2016, the state closed the loophole in the vast majority of cases.

Following California’s lead, Colorado opted out of equitable sharing in most cases in 2017.

Nebraska, New Mexico, Ohio, Arkansas, Utah and Arizona have also passed reforms placing similar limits on participating in the equitable sharing program. And in 2018, Wisconsin took a small step toward disincentivizing equitable sharing by prohibiting law enforcement agencies from collecting equitable sharing money unless there is a federal or state criminal conviction on the crime that was the basis for the seizure.

In 2019, MichiganNorth Dakota and New Jersey all reformed their asset forfeiture laws to require a conviction in most cases, but none of them addressed the federal loophole. Unless they pass follow-up legislation, law enforcement will be able to use equitable sharing and render these reforms significantly less effective in practice. 

Alabama and New Jersey took the first step toward ending equitable sharing by implementing strict reporting requirements last year, and West Virginia did the same in 2020. The requirements include reporting on cases adopted by the federal government and information on participation in equitable sharing. 

While these three reporting laws do not stop civil asset forfeiture, they do lay a foundation to do so in the future. By increasing transparency, these reporting requirements will allow people in those states to actually see the reality of asset forfeiture. As the saying goes, sunlight is the best antiseptic. Transparency often creates the momentum needed to drive future change.

New Mexico provides an example of how law enforcement agencies will continue to try to work around forfeiture reforms and the sunshine and diligence required to keep them in check. In 2019, Gov. Lujan Grisham signed a bill into law closing a loophole some city officials claim allows them to continue with civil asset forfeiture despite a 2015 law meant to end the practice.

While some people believe the Supreme Court “ended asset forfeiture, its opinion in Timbs v. Indiana ended nothing. Without further action, civil asset forfeiture remains. Additionally, as law professor Ilya Somin noted, the Court left an important issue unresolved. What exactly counts as an “excessive” in the civil forfeiture context?

“That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal.”

Going forward, opponents of civil asset forfeiture could wait and see how lower federal courts will address this “over the next few years,” or they can do what a number of states have already taken steps to do, end the practice on a state level.

This is an overview of recent state efforts to end civil asset forfeiture and opt out of federal equitable sharing. To get more details on state efforts to undermine policing for profit, along with other unconstitutional federal actions and programs, make sure you read our latest State of the Nullification Movement report. You can download it for free HERE.

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