Civil Asset Forfeiture

Montana Legislature Votes to Require Conviction for Asset Forfeiture, But Federal Bypass Remains

Will reforms work or will police just turn to the Department of Justice?


Bill sponsor Rep. Kelly McCarthy
Kelly McCarthy

Another state legislature has massively voted in favor of reforming their asset forfeiture laws to require criminal conviction. Today Montana's House of Representatives joined the state's Senate in passing some major updates to its asset forfeiture laws to make it harder to take the property of its citizens—particularly the innocent ones. Only eight representatives and one senator voted against the changes. The bill is now on its way to the governor to sign (reformers hope).

HB 463 (pdf) reforms several parts of the state's asset forfeiture laws, the most important of which is that law enforcement agencies will no longer be able to seize property or funds unless their target has actually been convicted of a crime. This kills the "civil" form of asset forfeiture. Only criminal forfeiture will be permitted. Beyond requiring a conviction, the legislation also requires a higher legal threshold of proof that the property police want to seize is actually connected with a crime. There are also some additional reforms with notifications and access to hearings to bolster the ability of citizens to defend against inappropriate seizure.

But there is one very significant difference between this law and what was passed recently in New Mexico. HB 463's reforms do nothing to prevent Montana law enforcement agencies from partnering with the Department of Justice, bypassing the state entirely, and using the federal Equitable Sharing Program instead. As I noted just earlier today, this federal program is how the small city of South Gate, California, is able to seize millions of dollars in assets without having to follow state guidelines.

Lee McGrath, legislative counsel for the civil-forfeiture-fighting Institute for Justice, nevertheless sees this reform as an important accomplishment.

"New Mexico's reform is the platinum standard," McGrath says. "This one is the gold standard." New Mexico's reforms require law enforcement agencies to hand over all seized funds and property to the state's general fund and forbids them from keeping anything for themselves. This rule keeps them from participating in the Department of Justice program entirely. Such reforms are not part of Montana's bill.

The Institute for Justice has previously given Montana a D+ grade for the quality of its asset forfeiture laws, requiring extremely low standards of proof to seize and presuming the defendant's guilt rather than innocence. But, McGrath says, Montana law enforcement agencies do not have a history of trying to circumvent the state and turning to the Department of Justice instead.

That could all change if HB 463 becomes law. McGrath says he believes bill sponsor Rep. Kelly McCarthy (D-Billings) will continue to keep track of how Montana police engage in forfeiture.

"Rep. McCarthy is going to keep his eyes open," McGrath says. "Should we see law enforcement circumventing the reforms, there will be additional legislation."