July 27, 2017


How to End Civil Forfeiture (Carimah Townes, 7/27/17, Slate)

In 2015, New Mexico became the first state to ban civil forfeiture. Law enforcement was previously entitled to 100 percent of forfeiture profits under state law, and agencies in the state also received an average of $2.4 million per year from the federal equitable sharing program. That changed when a coalition of civil rights and advocacy organizations, including the ACLU of New Mexico, the Rio Grande Foundation, and Drug Policy Alliance teamed up with Brad Cates, who oversaw federal asset forfeiture under President Ronald Reagan, to convince legislators that the practice was an abuse of power. Their argument was bolstered by a leaked recording of a prosecutor encouraging police to seize expensive cars and homes--a clear sign of policing for profit, says Emily Kaltenbach, director of the Drug Policy Alliance's New Mexico branch.

In New Mexico, money and property can now only be seized in criminal cases, not in civil ones. And items can only be taken after a criminal conviction, if they're associated with the crime and if law enforcement successfully fights for them during a separate trial in criminal court. Proceeds must go a general state fund, not directly to law enforcement. Moreover, the law banned the practice of turning over assets to the feds, unless they are worth at least $50,000. New Mexico's sweeping reform was achieved in large part because the law enforcement community was caught off guard by the speed at which the legislation received unanimous support, Kaltenbach says. As a result, there was no organized opposition.

Nebraska passed a similar law abolishing civil forfeiture last year, after the state's ACLU chapter released a damning report on the practice in 2015. Under the old law, law enforcement agencies collected $3 million between 2011 and the report's release. Agencies also received $16 million from the equitable sharing program between 2010 and 2014. The ACLU leveraged public outrage over the report in conversations with legislators, says Spike Eickholt, a lobbyist for the organization. Cops, sheriffs, and state patrolmen also put forth a tone-deaf opposition that focused on the law's effect on agencies' bottom lines. "It had gotten to a point ... that no one could defend civil forfeiture on its merits," Eickholt says. Despite their concerted pushback, members of law enforcement were unable to convince legislators that civil forfeiture was necessary to stop crime.   

Some states that haven't ended civil forfeiture altogether have implemented procedural reforms. In California--where more than 20 county sheriffs and police departments collected millions over a five-year period--and seven other states, property can be seized but not forfeited until after a criminal conviction. Just this month, Connecticut's governor signed a law that bans seizure unless an arrest is made and requires a criminal conviction before property can be forfeited. What differentiates these state laws from the ones implemented in New Mexico and Nebraska is that agencies can still pursue forfeiture in civil court once there's been a conviction. In cases where people are acquitted, they get their money and valuables back. Other states, including Pennsylvania and Florida, have shifted the burden of proof to law enforcement to demonstrate that an asset should be seized and forfeited or have raised the standard of proof for showing that an asset was related to a crime. Florida now prohibits seizing someone's property unless he or she has been arrested and charged.

Posted by at July 27, 2017 6:23 PM


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