A little-known policing practice called civil asset forfeiture came under considerable public scrutiny in 2015 and was subject to a number of notable reforms from the Department of Justice and in several state governments. Civil asset forfeiture is employed by federal, state, and local authorities to seize property without necessarily beginning criminal proceedings against an individual.
The practice came under scrutiny because of the perverse incentives it creates for law enforcement. First of all, civil asset forfeiture law typically allows the vast majority of the proceeds from forfeitures to go directly into law enforcement budgets. This incentivizes law enforcement to aggressively pursue asset seizures rather than prevent or solve crime. Next, under existing forfeiture laws, seizing someone’s property requires less proof than does convicting that person of a crime. Moreover, once an asset is seized, the burden of proof typically rests on the owner to show its innocence. This requires litigation, which can be difficult, time-consuming, and expensive, to get property back. For many asset owners, it isn’t worth the cost to do so!
What this all adds up to is that in many cases—such as those documented in investigative pieces in The Washington Post and The New Yorker—law enforcement authorities pursue the seizure of assets for which criminal involvement is, at best, unclear. Thus, civil asset forfeiture represents a significant deterioration of the property and due process rights of ordinary citizens.
New Hampshire provides an example of these incentive problems. The Institute for Justice gave the state’s civil asset forfeiture laws a “D-” in its November 2015 report. This rating places New Hampshire among the worst states in the country in terms of its civil asset forfeiture law. To address these problems, the New Hampshire House of Representatives passed House Bill 636. This reform bill would completely eliminate the practice of civil asset forfeiture. The fact that the bill was proposed by a bipartisan coalition of New Hampshire legislators is indicative of the level of consensus regarding the problematic nature of the practice.
Initial public discussion surrounding the bill was positive but noted that it left a significant loophole associated with the Department of Justice asset forfeiture program known as equitable sharing. Through this program, state law enforcement authorities could have their seizures processed and litigated by the federal government and, in turn, receive 80% of the proceeds from successful forfeitures. Fortunately for the property rights of individuals nationwide, the Department of Justice announced on December 24, 2015, that the program was being suspended.
This federal change is particularly important for any state-based reform to civil asset forfeiture. Previously, state reforms seeking to limit or curtail civil asset forfeiture could effectively be circumvented by law enforcement authorities through the federal equitable sharing program. State law enforcement authorities simply had to find a basis for federal involvement in the case, and seizures could proceed under the equitable sharing program—even if they were contrary to reforms made by state lawmakers.
What the suspension of this practice means for state-based reforms is that changes to civil asset forfeiture laws, if enacted, will truly be borne out in practice. This is great news, both for property owners and for state and local legislators who have reformed or intend to reform civil asset forfeiture practices.
Civil asset forfeiture reforms could include several best practices. First: They could ensure the burden of proof for asset seizures matches what is required in criminal cases, or, better yet, completely eliminate civil proceedings as an alternative to criminal asset forfeiture. Next, the incentive problems associated with the practice could be improved by directing forfeiture proceeds into the general budget, instead of allowing revenues, sometimes as much as 90 to 100% of them, to go directly to law enforcement budgets.
Another valuable reform would be to place the burden of proof on the government to show the asset was involved in criminal activity, as opposed to requiring the owner to prove the asset’s innocence. A final beneficial reform would be to increase the stringency of forfeiture reporting requirements from state and local law enforcement. Lack of transparency in many states makes it difficult for a concerned public to understand the magnitude of the practice, as well as where the proceeds from forfeitures are being spent. In some egregious cases around the country, proceeds from forfeitures have been used to purchase margarita machines and Hummers for local law enforcement.
It is for the purpose of discussing the need for civil asset forfeiture reform that the Charles Koch Institute is sponsoring an event in Manchester, New Hampshire, on January 12, 2016. The range of panelists displays the broad consensus regarding the need to reform the practice of civil asset forfeiture in New Hampshire, as well as across the country.
Gilles Bissonnette, legal director of the American Civil Liberties Union of New Hampshire, will provide a civil libertarian perspective on the practice. The long-standing involvement of the ACLU in the issue of civil asset forfeiture reform is a testament to the broad condemnation of the practice across the ideological spectrum because of the perverse incentives it creates for law enforcement agents.
Robert A. Peccola, an attorney at the Institute for Justice, has litigated a number of civil asset forfeiture cases. His practical experience litigating against the government will provide valuable insight into the uphill battle that is fighting the government to get your property back.
Vikrant Reddy, the Charles Koch Institute’s senior research fellow in criminal justice reform, has often spoken out against civil asset forfeiture abuses, and will highlight the unique window of opportunity for civil asset forfeiture reform that exists in New Hampshire today.
The event will be moderated by John Stossel, who has long used his popular TV show to raise awareness of government abuses of the property rights of ordinary citizens.