Civil Asset Forfeiture

Great News: New Mexico's Asset Forfeiture Reform Bill Signed by Governor

Actual criminal conviction will be required to take citizens' property.


"Somebody get Rand Paul's campaign on the phone, ASAP."
N.M. State Government

Waiting to pretty much the last possible moment, Republican New Mexico Gov. Susana Martinez has signed into law House Bill 560, the state's broad asset forfeiture reform legislation. The bill, introduced by Republican Rep. Zachary Cook, had complete bipartisan approval in the state's split House (controlled by Republicans) and Senate (controlled by Democrats). Nobody voted against it. But the governor's background was in criminal justice (she was a district attorney), and she was not signaling whether she'd go against law enforcement's wishes and curtail their ability to take people's property without having to prove a crime happened. Here's how I described the bill earlier in the week while we worried about its future:

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.

If Martinez didn't sign the bill into law today it would have been the same as vetoing it. The legislature is no longer in session. Supporters would have been forced to reintroduce the bill next session (meaning next  year).

In her letter (pdf) announcing that she had signed the bill into law, she tries to have it both ways, declaring her support for constitutional protections of property but also casting aspersions toward those who call asset forfeiture "policing for profit":

House Bill 560 (HB 560) makes numerous changes to the asset forfeiture process used by law enforcement agencies in New Mexico. As an attorney and career prosecutor, I understand how important it is that we ensure safeguards are in place to protect our constitutional rights. On balance, the changes made by this legislation improve the transparency and accountability of the forfeiture process and provide further protections to innocent property owners.

For these reasons, I have signed HB 560. However, I must make it clear that "policing for profit" is an overused, oversimplified, and cynical term that, in my opinion, disrespects our law enforcement officers. These heroes in our communities take on extraordinary risk, face incredible harm, and operate with tremendous courage, and this catch phrase improperly questions their motives and disregards their desire to serve and protect.

It is also dangerous to discount the role that funds acquired through forfeitures have played in keeping our communities safe and in protecting our officers from harm. We cannot allow this new law to undermine our efforts to combat crime throughout this state. With the passage of this legislation, it is more critical than ever before that every county and municipality, as well as the state legislature, makes a stronger commitment to fully fund our law enforcement agencies so that they can continue undertaking complex investigations, protecting the public, and protecting themselves while doing so.

The organizations behind the push—The American Civil Liberties Union of New Mexico, the free-market research institute Rio Grande Foundation, the New Mexico Drug Policy Alliance, and the asset forfeiture-fighters of the Institute for Justice—sent out an immediate jubilant press release:

"This is a good day for the Bill of Rights," said ACLU-NM Executive Director Peter Simonson. "For years police could seize people's cash, cars, and houses without even accusing anyone of a crime. Today, we have ended this unfair practice in New Mexico and replaced it with a model that is just and constitutional."

"With this law, New Mexico leads the nation in protecting the property rights of innocent Americans," said Paul Gessing, President of the Rio Grande Foundation. "Convicted criminals will still see the fruits of their crime confiscated by the state, but innocent New Mexicans can now rest easy knowing that their property will never be seized by police without proper due process."

"New Mexico has succeeded today in reigning in one of the worst excesses of the drug war," said Emily Kaltenbach, State Director for Drug Policy Alliance's New Mexico office "Like other drug war programs, civil asset forfeiture is disproportionately used against poor people of color who cannot afford to hire lawyers to get their property back. This law is an important step towards repairing some of the damage the drug war has inflicted upon our society and system of justice."

"New Mexico has shown that ending policing for profit is a true bipartisan issue with broad public support," said Lee McGrath, Legislative Counsel for the Institute of Justice. "America is ready to end civil asset forfeiture, a practice which is not in line with our values or constitution. This law shows that we can be tough on crime without stripping property away from innocent Americans."

Maybe some other states will follow suit.