Civil asset forfeiture should not be a partisan issue. People on every point of the political spectrum should have serious concerns about a policy that allows law enforcement officials to seize someone’s property without having to charge that person with a crime. When the government does not bear the burden of proof for seizures, and law enforcement can keep the proceeds of the property they seized, everyone should be alarmed. Seizing the assets of criminals is a necessary tool of law enforcement, but the difference between criminal forfeiture and civil forfeiture is enormous. Civil asset forfeiture allows police officers to pull people over under minimal pretenses, seize any cash they have on them, and then claim that it was earned through drug sales. Over the course of the last decade, the Drug Enforcement Agency has seized $3.2 billion from people without any charges being filed, and without any judicial review of the seizure. Whatever your feelings are about the role of government in people’s private lives and how the War on Drugs is being fought, it is difficult to defend these policies. Yet when looking at our map grading states on their approach to civil asset forfeiture, it is startling how little regulation and transparency most states have in place. This is not just an issue that affects blue states or red states, but a cross-country epidemic that has many policymakers on both sides of the aisle entrenched in their defense of the status quo. States in the Deep South are some of the worst offenders, almost all of them receiving a D or F grade. Yet within those states many conservative politicians have railed against the policy as a gross abuse of the government’s power. In 2018 two Republican State Senators in Alabama introduced a bill that would require a conviction before any asset forfeiture and would send proceeds from forfeitures to the state’s general fund, rather than to law enforcement coffers. In 2017, Kentucky Senator Rand Paul introduced the Fifth Amendment Integrity Restoration (FAIR) Act, which would apply similar reforms at the federal level. But letting law enforcement seize assets with impunity is not a problem confined to red states. CNDP’s analysis graded Massachusetts and Washington, two of the most progressive states on drug policy in general, with F’s on their civil asset forfeiture policies. New Jersey also received an F, Delaware and Rhode Island both earned a D-, and Maine a D+. Recent attempts have been made in these states to hold law enforcement accountable and limit their power. Unfortunately, these bills are often held in committee, never even getting a vote by state legislative bodies. The Alabama bill passed through the State Senate with a 25-1 vote, but never received a vote in the House. A similar bill in Rhode Island, introduced by three Democratic State Senators, was recommended “to be held for further study” by the Senate Judiciary Committee, ensuring that it would never receive a vote. In 2017, a Massachusetts civil asset forfeiture reform bill also died without ever receiving a vote. Meanwhile, no action has been taken on Rand Paul’s FAIR Act since it was introduced in 2017. Not every state has been as intransigent on this issue. In 2016, California outlawed equitable sharing, a policy that allows law enforcement to circumvent state policies by sharing proceeds of civil asset forfeiture with federal law enforcement. In 2017, the Republican-controlled Wisconsin legislature passed a bill requiring a criminal conviction before assets could be seized. Both states are now among only fourteen that we graded C+ or higher. There is still a long way to go on civil asset forfeiture policies at both the state and federal level. Only three states have outlawed the practice entirely. More than half of all states allow police departments to keep all of the proceeds from the assets they seize. But the more attention we can give to this unfair and destructive policy, the more pressure we can put on states to reform it. Tom Houseman
Civil Asset Forfeiture Over the past three months, many of you responded to our TAKE ACTION on civil asset forfeiture reform in Illinois. We are delighted to report that HB 303 and SB Al, sponsored by Rep. Will Guzzardi (D-39th) and Sen. Don Harmon (D-39th) passed the Illinois Senate unanimously and the House with one dissenting vote, and now awaits Governor Rauner’s signature. Most importantly, the bill requires that the burden of proof rest with the government in cases where an individual’s property is seized when law enforcement claims it has been involved with illegal activity. Until now, property owners have – contrary to U.S. standards of justice – had to prove their innocence. The bill also requires police and prosecutors to collect data and report on seized property and the use of proceeds. It exempts small sums of cash and mere possession of small drug amounts from seizures, and it makes it easier for “innocent victims” to claim the return of their property. This is not a perfect bill. Proceeds from seizure still go to support the budgets of police and prosecutors, a clear conflict of interest. Six states, including Indiana, Missouri, and New Mexico, keep agencies from keeping forfeiture proceeds. But the Illinois legislation is an important step forward. We recognize the ACLU, Cabrini Legal Aid, and other advocates for their extraordinary work. Thank you for your support. Click for more information. Taxation and Regulation Vermont, Connecticut, and Rhode Island are poised to join the eight states that have already legalized marijuana for recreational use. CNDP staff has developed strong clergy support in each of these three. They are especially significant because anyone could become the first to take this step through legislative action rather than a ballot initiative. Procedurally, Vermont is the closest. In mid-May, the house and senate approved adult possession of small amounts of marijuana. After initially vetoing the bill, Governor Scott supported a compromise, including a commission to recommend a tax and regulation system. This bill awaits legislative action when the General Assembly reconvenes in January. Connecticut introduced a tax and regulate bill in March. While neither chamber voted, the draft budget forwarded by the Senate and House contains a $180 million revenue total from marijuana sales. The session ended without budget approval, but action, including marijuana legalization, could take place in the next few weeks. Rhode Island has been on the cusp of tax and regulation for the past two years. Advocates are confident of majority support in both the House and Senate and note that three out of five Rhode Islanders support ending prohibition. The key task is to convince leaders in both chambers that the time has come for a vote.
Did you think that under the law we are innocent until proven guilty? Not when it comes to civil asset forfeiture. Police are allowed to seize property they suspect is connected to a crime. Usually, they take cars. Cash and electronic equipment are also likely objects of seizure if police decide to search where victims live. The burden is on owners to court to get their property back. They are not given counsel. Since most of the defendants are very poor, they cannot afford their own. The instructions on where and when they can plead their case are confusing or non-existent. If they don’t act fast enough, their property is auctioned off and proceeds handed over to law enforcement. It is estimated that a significant majority of individuals whose process is seized in Cook County end up never even trying to prove that their property should be returned. This is not surprising (if painful to watch). Without procedures telling them what to do, the victims of property seizure simply give up.
It’s easy enough to read about civil asset forfeiture and be angry at a system that seizes property and keeps it until the owners prove they have not committed a crime. Last week we wanted to get a more personal, first-hand view, of how the process works. All proceedings for civil asset forfeiture in Cook County are held in Room 1707 of the Daley Center. Anyone can go. We sat in on a docket of cases. Four prosecutors from the Cook County State’s Attorney were present. No one represented the four defendants waiting to be called. All were African-American.
In November of 2015, the Washington Post reported that in the previous year law enforcement had taken more property from people – including cash, automobiles, and even homes – than burglars had stolen. Burglary losses amounted to $3.5 billion, while, shockingly, the net asset of police seizures amounted to $4.5 billion. (via The Institute for Justice) More disturbingly, this number reflected only federal statistics, and not seizures by state police and local law enforcement, data that in most cases is extremely difficult to obtain. Law enforcement utilizes a practice known as civil asset forfeiture to permanently confiscate property they perceive to be involved in criminal activity. This is done without requiring officers to prove the person or the property is guilty and/or connected to criminal activity. The process to reclaim one’s property in the event of seizure is legally complex, expensive, and time-sensitive, making the extreme majority of assets logistically impossible for most people to reclaim. Furthermore, law enforcement is inherently incentivized to persist the practice as all funds obtained through asset forfeiture are re-directed to the operating budgets of their respective departments.
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