Fight Crime by Ending Civil Asset Forfeiture

Even government officials can occasionally admit the need for limits to their thievery.

To judge by the tax-policy noise coming out of Washington, D.C., the government is eager to take even more of our stuff. But there's one area in which our assets and possessions are becoming safer from the sticky fingers of grabby officials: civil asset forfeiture is, ever-so-gradually, being reined-in across the country. One state at a time, with the criminal justice system under greater scrutiny than ever, people's cash, cars, and homes are winning protection against outright theft by prosecutors and cops.

"Today, the Arizona Senate voted nearly unanimously in favor of House Bill 2810, which requires the government get a criminal conviction before taking someone's property," the Goldwater Institute, which championed the legislation, announced April 28.  "HB 2810 would address civil asset forfeiture, a practice that allows police and prosecutors in states across the country to take, keep, and profit from someone's property without even charging them with a crime—much less convicting them of one."

With wide, bipartisan support, the bill is likely to be signed by Gov. Doug Ducey, who has supported more moderate reforms to civil asset forfeiture in the past. That includes a 2017 measure that raised the bar for government to seize property and prevented state and local law enforcement from teaming up with federal agencies to share goodies nabbed under more-permissive federal rules.

"This is a significant victory, for Arizona to be joining the growing roster of states that have reformed their forfeiture laws," Will Gaona, policy director of the American Civil Liberties Union of Arizona, commented at the time. "This bill addresses a number of significant problems with the current civil asset forfeiture scheme and moves Arizona in the right direction on property rights."

The new bill goes even further, making asset seizures possible only after government officials win a criminal conviction.

Arizona isn't alone in its reform efforts. Alabama's House is considering a measure already passed by the Senate that would require law enforcement to meet a higher evidentiary standard for asset seizures and exclude forfeiture of cash totaling less than $250 and vehicles worth less than $5,000, since fighting to recover such property usually costs more than the effort is worth. Like the 2017 Arizona measure, the Alabama legislation would prevent local and state law enforcement from working with the feds to steal money and goods.

In fact, provisions restricting local cooperation with federal agencies over asset seizures reappear time and again in legislation. California included such language in its 2016 reform law, and Colorado did the same the following year.

"Unfortunately, state reforms aren't enough because police agencies have concocted a clever workaround," Steven Greenhut pointed out earlier this month in Reason. "They take people's assets, then 'partner' with federal agencies, which operate under a much broader standard. Then they split the loot."

The U.S. Departments of Justice and the Treasury even publish a handy online guide detailing how local cops and prosecutors can profit from working with federal counterparts. "One of the ancillary benefits of asset forfeiture is the potential to share federal forfeiture proceeds with cooperating state and local law enforcement agencies through equitable sharing," the document boasts. That "equitable sharing" occurs under federal rules that bypass local restrictions on the practice—unless such sharing is curbed.

The federal government has been resistant to reform of its practices. The U.S. Supreme Court recently turned away a legal challenge to government agencies' refusal to provide a timely way to seek the recovery of property. While a bipartisan bill to make it somewhat harder to seize assets was recently introduced in Congress, that leaves most of the reform effort, for now, at the state level.

Not that local law enforcement is any more enthusiastic about changes to asset forfeiture than the feds. Arizona's reform legislation made it to Ducey's desk over the objections of cops and prosecutors. Similar objections have been raised against proposals in Nevada, and appear to have kneecapped efforts in Hawaii for now. 

In fact, officials are so addicted to the flow of funds they get from asset forfeiture that they sometimes buck the law themselves. They even defy orders to return ill-gotten goods to rightful owners.

"The Town of Mooresville, after having a motion for dismissal denied Monday, is once again being held in civil contempt of court for failing to return nearly $17,000 seized during an investigation," North Carolina's Greensboro News & Record reported earlier this month. "[District Judge Christine] Underwood stated that the Town of Mooresville will have seven days from the official filing of the order to comply and return the money or … the court will consider issuing orders to arrest both the Town Manager of Mooresville, Randy Hemann, and the Chief of Police, Ron Campurciani."

Cops seized the money at issue in Mooresville from Jermaine Sanders after a search of his car last November uncovered a small amount of marijuana. A judge ordered the Mooresville Police Department to return the cash a week later, but officials have consistently refused, arguing (among other things) that they no longer have the money since they gave it to U.S. Customs and Border Protection. Equitable sharing at work!

"The simple truth is that civil forfeiture continues throughout the United States because law enforcement has a very specific financial incentive to use it: it gets to keep the money," a coalition of  reformist organizations wrote in a March 15 letter to members of the U.S. House Judiciary Committee. "Congress should not allow this unjust civil forfeiture regime to continue any longer. The most optimal solution is to eliminate civil forfeiture altogether and rely instead on criminal forfeiture after a crime is proven." The organizations also offered compromise proposals, including ending "equitable sharing" and respecting due process rights of those attempting to recover seized property.

In the meantime, Arizona has joined other states in reining-in the overt banditry that goes by the name "civil asset forfeiture." The national effort to reform the practice is evidence that even government officials can occasionally admit the need for limits to their thievery.