North Dakota Makes it Harder for Police to Take Property Without a Conviction

Police had wide authority to seize assets without having to prove a crime even happened, but now the state is tightening the rules.

Big forfeiture reforms are coming to North Dakota, a state notorious for allowing police to seize and keep people's property without actually convicted them of a crime.

Last week the state's Republican governor, Doug Burgum, signed House Bill 1286, which seriously curtails law enforcement agencies' ability to arrest somebody, take his or her property, and attempt to keep what they've seized for themselves even when they cannot prove an underlying crime.

We're talking about the controversial (and arguably unconstitutional) practice of civil asset forfeiture. Promoted as a way to fight drugs by seizing the assets of wealthy kingpins, it has instead grown into a massively corrupt mechanism where police agencies pull people over or raid their houses on whatever pretext the cops can muster. If they find people carrying large amounts of cash, for example, they seize it and attempt to claim the money must be related to the drug trade so that they can keep the cash for themselves. It gets its name because it's a "civil" as opposed to a "criminal" proceeding—so the evidentiary threshold to successfully take somebody's property is lower than what's required to get a conviction, and so people have to pay for their own attorneys to fight the process.

North Dakota's rules were particularly bad for the citizens. It's one of only two states to get an F grade in the Institute for Justice's "Policing for Profit" state-by-state analysis. (Massachusetts is the other.) Prior to HB 1286, police only needed to meet the threshold of probable cause (the level of evidence needed to get a search warrant) to attempt to force forfeiture of property. Individual law enforcement agencies also got to keep 100 percent of what they took as long as they kept their forfeiture fund under $200,000—though it's not clear how North Dakotans would even know the status of those funds, since the state had no forfeiture tracking or reporting requirements. The Institute for Justice doesn't even have numbers for how much money North Dakota police have taken in from asset forfeiture, except in cases where police have partnered with the federal Department of Justice.

Thanks to the bill signed last week, police will now have to get a conviction before they can try to force most people to forfeit their assets. There are exemptions in cases where the defendant is dead, has been deported, has disappeared, or has abandoned the property. It also allows an exception if police and prosecutors can provide evidence "beyond a reasonable doubt" that the assets they want to seize were directly connected to a crime. That's relevant because in asset forfeiture cases, the things to be seized are actually the subject of the legal case, not the people accused of crimes. North Dakota is requiring the same standard of proof to attempt to seize property as it does to convict people, even if they can't actually convict somebody of an underlying crime. If they do manage to convict somebody of the underlying crime, then the threshold of proof to force the forfeiting of property drops to "clear and convincing" evidence that it was connected to criminal activity. It's not as good as requiring a conviction for each attempt to seize cash and property, but it's certainly better than the status quo.

The bill also introduces tracking and reporting requirements so that citizens and journalists can keep track of where the money is going.

Also, in light of a recent Supreme Court ruling that states are bound by the Eighth Amendment's prohibition on excessive fines and fees even in asset forfeiture cases, the new law includes rules for courts to evaluate the value of the property seized in relation to the level of the offense and the defendant's role in the crimes. A car worth less than $2,000 can't be seized unless there's proof it has been altered to conceal contraband, and homes cannot be taken.

The bill's sponsor, Rep. Rick Becker (R–Bismarck), was unhappy that it was watered down a little bit to get enough of a compromise to pass and turned against it. According to the Bismarck Tribune, he's considering a ballot initiative for 2020 that would tighten the rules for asset forfeiture even further. But whatever the gaps in the bill that just passed, it's certainly better than what North Dakota had before. Honestly, it couldn't have gotten much worse.