After some wrangling, New Hampshire's legislature has just approved some modest reforms to its system of police asset forfeiture. Actually, they could have been huge changes. Simply reading what they're changing suggests that what they're doing is a big deal. But the devil, as always, is in the details.
The biggest change is that state law will now require a criminal conviction or plea agreement in order to seize somebody's property. On paper, this would appear to be a huge deal. One of the biggest problems that results in the abuse by police of the forfeiture process is "civil asset forfeiture." Under civil forfeiture, officials do not have to land a conviction in order to seize somebody's assets. Often times they don't even have to file charges. They just have to argue, under much looser evidentiary standards, that the money or property is connected to criminal behavior. And because it's a civil process, people aren't guaranteed lawyers and the system is significantly different (and often more confusing).
Requiring a conviction should be a big change. And in addition, the reforms would increase the evidentiary threshold to connect property with a crime and puts the burden of proof on the state to show guilt, rather than the accused to prove innocence.
On paper, this would appear to be an end to civil asset forfeiture. That would be good for New Hampshire, which currently has terrible asset forfeiture laws, according to the forfeiture-fighting team at the Institute for Justice. They give the state a D- grade on the rules it currently has in place, which don't require convictions and allow law enforcement to keep 90 percent of what they seize. These rule changes would be a boon to New Hampshire residents, and the Institute for Justice did praise the bill as "an encouraging reform package."
But there is one great big problem. The Department of Justice has its own asset forfeiture program, and through its system of "Equitable Sharing," creates a path for law enforcement agencies to bypass state law and turn to the federal government to seize people's cash and property under laxer rules. Many states have seen a huge jump in police seizure through the Department of Justice's Equitable Sharing Program over the past decade, even as they tighten rules for forfeiture.
We see this in New Hampshire, even under its current lax laws. The state doesn't actually seize much through its own state rules. The New Hampshire Union Leader notes that the state only brought in about $100,000 through its own seizure laws for 2015.
But the Institute for Justice looked over the state's participation in the federal program, and there's a huge difference. Between 2000 and 2013, New Hampshire brought in more than $15 million with the help of the Department of Justice through the seizure program. The Union Leader story makes no reference to the revenue the police bring in from federal seizures, making this all look like small potatoes. In reality, there's a huge amount of money coming in from a different path.
These new state reforms give no suggestion that there will be any changes with New Hampshire police turning to the feds to more easily seize assets and property. When Nebraska recently passed reforms to asset forfeiture, also eliminating the "civil" forfeiture component, they also made sure to add restrictions that control when law enforcement agencies can turn to the Department of Justice's program.
The law had initially eliminated the state's drug forfeiture fund and rolled forfeitures through the state system into the general fund. This would have been a good tool for decreasing the incentives for police to seize, but police complained and Gov. Maggie Hassan threatened a veto. The drug forfeiture fund has apparently been restored.
While it is good that New Hampshire is making efforts to reduce abuse, I fear that without some major federal reforms, we're not going to see anything actually different in the Granite State. A group of lawmakers in D.C. is attempting much-needed federal reforms.