Sunday, May 17, 2015

204.7 - Update: states move against civil asset forfeiture

Update: states move against civil asset forfeiture

Finally for this week, we have an Update on something I've talked about before: civil forfeiture, or civil asset forfeiture as it's also known.

I've discussed this a few times here, the first time nearly two years ago, the most recent time earlier this year. Although I have talked about it before, I'm going to do a refresher before we get to the Update.

Civil forfeiture is a corrupted and corruption-ridden outgrowth of the "War on Drugs." It allows police to seize personal assets based on nothing more than their claimed belief that those assets either are related to illegal drug activity or were paid for with the proceeds of illegal drug activity. They can do this even if they have no basis for any charges against the person possessing the asset. In many cases you do not need to be convicted of crime to have your stuff taken; you do not even have to be accused of a crime. And no, I am not exaggerating. Not one tiny bit.

Under this program, cops have seized money, computers, TVs, jewelry, cars, even homes and businesses without ever presenting - or even having to present - a single shred of evidence that the owners had done anything illegal.

Once your property is seized, it's your responsibility to somehow prove the negative that the asset was not obtained through the drug trade. So it has become sadly commonplace for cops to just keep money or other valuables they find during traffic stops under the claim it's the result of illegal activity and therefore can be seized. The documented examples are legion.

Such civil forfeiture has a long history; it was one of the things that drove the American Revolution and one of the things the part of the Fourth Amendment referring to people being secure in their effects against unreasonable seizure and the part of Fifth Amendment about not being deprived of property without due process of law were designed to prevent.

Except for limited cases such as piracy, civil forfeiture was not used much in US - not, that is, until 1984. That's when Congress passed the Comprehensive Crime Control Act, which established a special fund that turned over proceeds from seizures made by federal law-enforcement agencies to the agencies responsible for them. That is, the value of assets seized now didn't go to the general fund, most of it went to the cops and prosecutors. Put another way, cops now had a profit motive for seizing property. The result? At the Justice Department, proceeds from forfeiture went from $27 million in 1985 to $556 million in 1993 to $4.2 billion in 2012.

Since 1984, most if not all states have adopted own civil forfeiture laws, but a number of them come with standards clearly stricter than the federal program, standards such as being able to show actual evidence of related criminal activity. But there was a huge loophole: A federal program called, creepily enough, Equitable Sharing, which included a provision under which the feds could "adopt" seizures made by state agencies, which could then be justified under the looser federal rules. The feds would keep 20% of the proceeds, with 80% going to the local police departments.

Eric Holder
There was some degree of Good News on this front in January when Eric Holder said he was ending the "adoptive seizure" portion of the Equitable Sharing program. However, this didn't apply to seizures in joint state-federal operations, nor, obviously, did it apply to state-level seizures and despite the fact that stricter standards existed in a number of states, that wasn't true in a number of others.

As a result, there were those who said that Holder's move didn't amount to much.

In fact, a February study by the libertarian Institute for Justice found that "adoptive seizures" accounted for only about 25 percent of all properties seized under Equitable Sharing and only about 10 percent of the total value of all seizures.

Which was true, but I noted at the time that Holder's action did not come in a vacuum but was a reflection of the fact that more questions are being asked about whole program of asset seizure and suggested he had brought more attention to the whole corrupt business, which I thought was likely to spur more outrage and more action in more states.

Which brings us to the update.

Last month, New Mexico enacted new law which requires authorities to obtain a conviction or guilty plea before seizing property. It also puts proceeds from seizures into the state's general fund rather than to the budgets of police departments, largely removing the cops' profit motive for such seizures.

The ACLU of New Mexico called it "a good day for the Bill of Rights."

This month, Montana Gov. Steve Bullock signed a bill to overhaul that state's civil asset forfeiture laws, a bill passed - as was the one in New Mexico - with overwhelming bipartisan support.

As in New Mexico, the new MT law, to go into effect in July, requires conviction of a crime before the state can try to seize property. It also raises the legal threshold for forfeiture, requiring "clear and convincing evidence" - as opposed to the feeble "probable cause" - that the seized property is connected to criminal activity. And it establishes a number of protections for those whose property is targeted, such as a pretrial process.

However, unlike New Mexico, it does not move all proceeds into the general fund, leaving open the loophole of "joint" state-federal operations under Equitable Sharing. The bill's chief sponsor says he is going to be watching to see if more legislation is necessary.

Finally for now, a new bill in California, introduced in April, would require a conviction in all cases before asset seizure, closing a loophole that made it easier to make large seizures than small ones. It also would move some of the proceeds now going to prosecutors, law enforcement and the general fund to the courts and offices of public defenders, and says that Equitable Sharing can't be used by the cops to evade state requirements.

A similar bill failed to make it out of comm in 2012  - but the ground is different now. We’ll have to see if California is prepared to have Montana out in front of it on privacy and 4th Amendment rights.

And we can continue toward putting an end to the corrupt official thievery that is civil asset forfeiture.

Sources cited in links:

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