The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Montana state legislature recently voted through a bill that limits the use of asset forfeiture, a tool often used by law enforcement agencies to seize the property of people who have never been convicted of any crime, and keep the profits for themselves. In many cases, property is seized despite the fact that the owner has not done anything wrong, merely based on extremely weak evidence that it might have been used to commit some offense.
Over the last few years, the injustices inflicted by this practice have attracted extensive attention across the political spectrum, including exposes in the New York Times and Washington Post.
The new Montana bill includes some important reforms, such as forbidding the use of asset forfeiture in cases where there has been no criminal conviction. Even if there is a conviction, the authorities may not seize property unless they can prove by "clear and convincing evidence" that it was used in the commission of the crime. This is a much higher burden of proof than was applied previously.
But, as Scott Shackleford points out, the Montana law still has some serious limitations. It does not prevent law enforcement agencies from keeping the proceeds of asset forfeitures for themselves, and it also does not block them from circumventing state constraints on asset forfeiture by partnering with federal agencies through the controversial federal "equitable sharing" program. Outgoing Attorney General Eric Holder recently adopted reforms curtailing that program. But his policy has important loopholes and falls well short of ending the federal role in helping state cops act like robbers. Moreover, Holder's recently confirmed successor Loretta Lynch has a history of engaging in abusive asset forfeiture practices herself, during her career as a US attorney. Whether she continues to promote such injustices in her new position remains to be seen.
Overall, the Montana law is a significant improvement over the status quo. But it is not as strong as New Mexico's recent reform law, which forecloses the kinds of loopholes the Montana law left in place. Although we are still far from putting an end to abusive asset forfeiture practices, the Montana and New Mexico laws represent real progress. Other states, such as Michigan, are considering reforms of their own.