Civil Asset Forfeiture

Future of New Mexico's Overwhelmingly Supported Asset Forfeiture Reform Uncertain

If governor doesn't sign bill this week, it is dead.


Does Susana Martinez stand with Rand?
N.M. State Government

Late March, New Mexico's legislature approved some major reforms to the state's asset forfeiture laws. It eliminated the concept of "civil" asset forfeiture, meaning law enforcement agencies would have to actually convict people of crimes to take their assets. It also requires all proceeds from asset forfeitures by law enforcement agencies to be put into the state's general fund. This is important because it reduces police incentives to engage in reckless forfeiture efforts, because they'd no longer be able to keep what they grab. It also means that the law enforcement agencies wouldn't be able to bypass state law by turning to the Department of Justice's Equitable Sharing Program. The program lets local law enforcement agencies keep seized assets by partnering with federal agencies, but it requires the locals to have their own funds for them. House Bill 560 (pdf) would forbid law enforcement agencies from retaining any forfeited property.

The system has been prone to terrible, terrible abuses by law enforcement agencies in New Mexico. That's perhaps why the HB560 overwhelmingly passed. Nobody voted against it in either houses of the state's legislature. That's impressive since control of the two houses is split between the Democrats and the Republicans. Bipartisanship to get behind?

But it's not over. The legislation is sitting on the desk of Republican Gov. Susana Martinez. She has apparently not declared whether or not she will sign it. The legislative session has already ended. If Martinez doesn't sign the bill into law by Friday it is dead. She can actually veto it without doing anything. Despite the bipartisan support, no veto override is possible now. It would have to be reintroduced next year.

It's unclear what will happen. Despite the popularity of the legislation, Martinez worked as a district attorney prior to her run for governor. She has been a part of the law enforcement machinery. I spoke with Paul Gessing, president of the free market-oriented Rio Grande Foundation, one of the members of the coalition behind the push for the legislation, along with New Mexico's American Civil Liberties Union, the Institute for Justice, the Drug Policy Alliance, and others.

"I think she's probably personally not in favor of this kind of thing," Gessing says of Martinez. "She comes from a law enforcement background, prosecutorial no less. Philosophically it's something she doesn't want to see happen. But I think the national interest for both conservatives and the left is impacting her decision, and potential national aspirations may lead her to go ahead and sign."

Those "potential national aspirations" Gessing refers to would be Martinez's possibility as a selection as a running mate for a Republican candidate for president. A latino, female Republican governor that appeals to the conservative elements of the southwest could hit quite a few demographics for the nominee. Sen. Rand Paul just announced his candidacy for president today, and he has been attempting to reform asset forfeiture laws on a federal level. If she vetoes this law, what would it mean for her chances if Paul pushes to the head of the pack?

The legislation has received positive attention throughout the state, Gessing says, getting endorsements from all three of New Mexico's major dailies. But Martinez's office is being quiet about a pending decision.

"I think there's a lot of discussion going on," Gessing says. "If she does veto it, I think she will do it quietly in the form of pocket veto."

Reason has contacted Martinez's office to see if she will comment about her plans for the legislation. If she responds, this piece will be updated.