by The Daily Signal | 3.27.18
Jason Snead is a policy analyst in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Read his research.
Americans pride themselves on a commitment to due process rights. We hold criminal defendants “innocent until proven guilty,” and believe that everyone should have his day in court.
Yet, thanks to civil forfeiture laws, many innocent people have had their cash and property seized without ever being charged with a crime, and with few legal protections to rely on.
Thankfully, this may soon change in Tennessee, where a bill advancing through the Legislature would take a first step toward reforming the state’s civil forfeiture laws.
Last week, Tennessee’s House Criminal Justice Committee cleared the bill (HB 2021), which proposes modest reforms to the state’s forfeiture laws. Meanwhile, companion legislation has reached the floor of the state Senate.
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By all accounts, this action could not come a moment too soon. Tennessee law allows cash and property to be permanently seized from owners if it can be tied to an alleged crime by a mere preponderance of the evidence. There is no requirement that anyone be charged with, much less convicted of, a crime for the forfeiture to proceed.
Once a forfeiture case is resolved, law enforcement agencies in the state get to keep the proceeds of the forfeiture and spend it as additional revenue for their agencies.
This forfeiture financial incentive has distorted the priorities of some law enforcement departments, leading them to concentrate on seizing assets seemingly at the expense of other law enforcement functions, like making traditional drug busts and arresting criminals.
In one telling example, a Tennessee news investigation revealed that drug task force officers deployed along I-40 were 10 times more likely to patrol the westbound lanes than the eastbound lanes. The reason: Drugs flow east while the cash from their sale flows west.
In another example, dashboard video of a traffic stop in rural Tennessee revealed drug task force officers offering two truck drivers suspected of transporting drug funds their freedom in exchange for the $500,000 in plastic-wrapped bills they were hauling.
As bad as it is to allow suspected criminals to go free in exchange for their money, it is perhaps worse that many innocent people find themselves subjected to property seizures.
For example, George Reby had $22,000 seized as he was traveling along I-40 to a conference in Nashville. Reby, an insurance adjuster, was going to use the money to buy a car he was bidding for online. But a Tennessee police officer, Larry Bates, decided the funds were actually drug money, and seized the full sum.
Reby eventually got his money back, but only after he signed an agreement promising not to sue the department over the seizure.
When civil forfeiture was initially ramped up in the 1980s, this was not how it was intended to be used. Congress, followed by the states, turned to the tool as a means of depriving the worst-of-the-worst offenders—drug kingpins, criminal organizations, and money launderers—of their ill-gotten gains.
The marked drift away from this narrow and noble goal has prompted a backlash. To date, half the states have reformed their forfeiture laws to rein in the practice and provide property owners with greater due process protections against baseless seizures. Several have gone further, abolishing the practice outright.
HB 2021 takes a more modest approach. The bill would require that the state hold a forfeiture warrant hearing within 45 days, and that notice of the hearing be mailed to property owners within five days of a seizure.
Property owners, as well as the individuals in possession of the property at the time of the seizure—a son driving his parent’s car, for example—would have a right to testify as to “why no probable cause exists to issue a forfeiture warrant.”
It would also establish a presumption that currency is not forfeitable “absent evidence to the contrary.” The burden to provide this evidence would rest on the seizing officer.
The legislation would require a forensic chemistry test be undertaken to confirm the presence of controlled substances when that is the basis for the forfeiture. If the test comes back negative, the new law would require the prompt return of property unless other evidence exists to justify the seizure, or the currency or property is subject to forfeiture in another case or needed as evidence in a criminal case.
In addition, HB 2021 would provide for the recovery of some attorney’s fees in civil forfeiture cases.
It is a sad commentary on the state of forfeiture law that amendments as modest as requiring prompt notice of a hearing, or the return of property when evidence cannot be mustered to support a seizure, constitute “reform.”
Nevertheless, these additional protections are welcome. One additional reform is needed, however, to make them stick: closing what advocates call the “equitable sharing loophole.”
Equitable sharing is a federal program that allows federal officials to “adopt” property seized by local officials for forfeiture under federal law. The original seizing agency would then receive up to 80 percent of the proceeds, and would be entitled to spend this money without oversight by state or local lawmakers.
In other words, state lawmakers could adopt substantial forfeiture reforms—could even go so far as to abolish the practice altogether—only to see their own police and sheriffs work to undermine the protections afforded to property owners.
Indeed, equitable sharing has been heavily criticized for incentivizing this behavior. The program was largely suspended in 2015, but Attorney General Jeff Sessions has, to the consternation of some federal lawmakers, reactivated it.
Amendments recently filed to another forfeiture reform bill, HB 421, would restrict the ability of Tennessee law enforcement agencies to refer seized property for adoption unless the “net equity value of the property and currency seized in a case exceeds one hundred thousand dollars.”
Other states have adopted similar provisions, seeking to buttress their own state laws without inhibiting cooperation between state and federal authorities in major cases against drug cartels and other offenders.
Tennessee is poised to take a step forward on forfeiture reform. More work remains.
The Heritage Foundation—joined by a broad, bipartisan coalition—has laid out nine crucial reforms lawmakers should adopt to protect the property and due process rights of their citizens.
These comprehensive reforms include raising the evidentiary standard to “clear and convincing evidence” to better reflect the quasi-criminal nature of forfeiture cases long recognized by the Supreme Court, and the elimination of the financial incentive to seize and forfeit property that has, in too many documented instances, turned police into profiteers.
The work going on in Nashville and state capitals nationwide is continuing proof that the forfeiture reform movement is alive and well.
Written by The Daily Signal
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