Civil Asset Forfeiture

Idaho Reforms Law to Require Criminal Connections Before Seizing People's Stuff

Police will also be required to track and report what they take.


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Idaho's Senate and House have approved some modest reforms to Idaho's forfeiture laws that would make it a little tougher for police to simply snatch up all of a person's cash and assets on the basis of claiming the property was "connected" to a crime. And when they do seize property, they're going to have to actually document what they're doing.

Idaho legislators have been hammering out reforms to the state's forfeiture laws since last year and now they've managed to get HB 202 through both chambers of their legislature (as of last week) and send it to the governor's desk.

Civil asset forfeiture is the process by which police seize and keep cash and property that they claim is connected to criminal activity. It has become a source of contention and corruption because the "civil" nature of the forfeiture means that police and prosecutors often do not have to find a person guilty under criminal proceedings in order to seize his or her stuff. They often don't even have to charge them. The seizures take place in civil proceedings where not only is the threshold to prove a case less stringent than in criminal cases, but the citizens who are having their stuff usually have to hire their own lawyers and spend money (that they no longer have—because it's been seized) to fight it.

Idaho's reforms do not eliminate the civil component of asset forfeiture, but they do make it a little bit tougher. The new law declares that simply having cash is not in and of itself enough evidence to meet the "probable cause" threshold to attempt to seize. Yes, this is a thing that actually happens. Police pull somebody over, search their vehicle, find lots of cash, and declare that it's likely the result of drug dealing, even without any evidence of drugs.

The law would also require that courts consider whether the seizure is proportionate to the crime alleged and consider the possible hardships to the people involved in the case. The court will have leeway to tailor the forfeiture if it concludes the police or prosecutors are taking it too far. Hardly a silver bullet given that courts can be extremely deferential to police, but it's something.

Finally, and possibly most importantly, HB 202 implements police reporting requirements to keep track of forfeitures. Up until now it had almost no transparency or tracking system for its forfeiture program and was given an F by the property-rights-defending Institute for Justice for it. One of the challenges in trying to help Americans understand how civil asset forfeiture gets abused is that poor tracking and transparency rules make it hard in many cases to provide examples of misuse. The extensive tracking and reporting requirements would at least help Idaho citizens understand how the forfeiture program actually operates in real life. Law enforcement agencies would even have to keep track and record when they participate in federal task forces for forfeiture. This method is often used by local law enforcement agencies to bypass state-level asset forfeiture restrictions. The Department of Justice has looser asset forfeiture requirements than many states and allows local police to keep up to 80 percent of what they seize.

Read the legislation here. The Idaho Freedom Foundation has a very positive analysis of the legislation here. It now heads to the desk of Republican Idaho Gov. Butch Otter.