As I have previously explained, civil asset forfeiture is an obnoxious legal process that empowers law enforcement agencies to confiscate property they suspect has been used in, or derived from, criminal activity. Part of what makes this process so abhorrent is the fact that, because it is a civil action taken against the property itself, the owner of the property need not be convicted of, or even charged with, a crime. In previous newsletters, I have written about some on-going efforts to reform asset forfeiture policy at the federal level. Today I’m happy to report that similar efforts are underway in the states.
Republican Proposals in Oklahoma and Texas
In its comprehensive report on civil asset forfeiture abuse, the Institute for Justice gave Oklahoma a "D" and described its forfeiture law as "terrible." So it was certainly good news when, in February, two Republican state senators filed a bill to replace Oklahoma’s forfeiture law with a new system of "criminal forfeiture" under which forfeiture would only be authorized when the owner of the property had been convicted of a felony, and when the owner had knowingly used the property for, or derived it from, "the commission of the crime."
IJ gave Texas’s forfeiture law an even lower mark than Oklahoma’s: a "D-." So it was arguably even better news when, in early March, a Republican state representative in Texas filed an almost identical bill entitled, "An act relating to repealing civil asset forfeiture and establishing criminal asset forfeiture in this state."
A "Bipartisan Push" in New Mexico
In a piece that appeared on the Cato Institute’s website, Adam Bates suggested that these Republican proposals were part of what he described as a "bipartisan push for justice reform." However, I was skeptical. I pointed out that the only example Bates offered of a Democratic contribution to the reform movement was the change in DOJ forfeiture policy that Eric Holder had announced in January. However, as Bates himself acknowledged, the changes announced by Holder are subject to many "exceptions and potential loopholes," and Loretta Lynch, Holder’s presumptive successor, is an enthusiastic "advocate and practitioner of civil asset forfeiture."
I’m delighted to admit, however, that subsequent events have shown that I was wrong and Bates was right. Just over a week ago, bipartisan majorities in both houses of the New Mexico state legislature approved a bill to eliminate civil asset forfeiture and replace it with a criminal forfeiture program similar to those that have been proposed in Oklahoma and Texas. Assuming Governor Martinez signs the bill, New Mexico will be the first state to renounce the odious practice of civil asset forfeiture. Let us hope that it does, and that many other states follow its example.
North Carolina Still Leads the Way
Before leaving the topic of asset forfeiture, I can’t resist pointing out that, while New Mexico may soon start setting a good example to other states by repealing its civil asset forfeiture laws, North Carolina is already setting an even better example by never having adopted such laws in the first place. (As I previously noted, "Under North Carolina state law, forfeiture is generally permitted only when the owner of the property in question has been charged with and convicted of a crime.")
This is, I think, another instance of what I talked about last week — the fact that, thanks to the the good design of our institutions and the good sense of our people, North Carolina has generally avoided the kinds of predatory policing that have, in other states, blotted the records of law enforcement agencies and poisoned relations between those agencies and the public they are supposed to serve.
Which is not to say we should be complacent. Thanks to the federal "equitable sharing" program, North Carolina hasn’t managed to avoid the scourge of civil asset forfeiture completely. Nevertheless, when it comes to asset forfeiture — and to predatory policing more generally — a certain amount of pride and gratitude are certainly in order.
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