by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Civil asset forfeiture is inherently unjust, as I’ve explained many times in the past (here, here, here, here, here, here, and here). Why? Because it empowers law enforcement agencies to confiscate property from people who have never been charged with, let alone convicted of, a crime. It also violates due process and property rights and perverts the proper relationship between the police and the public by turning the former into predators and the latter into their prey.
As I’ve also noted many times, when it comes to protecting its citizens from this kind of abuse, North Carolina has always been a leader. That’s because under our state laws a criminal conviction is almost always required before property can be forfeited. It’s also because under our state constitution forfeiture proceeds may not be retained by the agency that makes the seizure but must, instead, be used for “maintaining free public schools.”
Last week, Alabama State Senator Arthur Orr, a Republican, introduced SB 213, “The Alabama Forfeiture Accountability and Integrity Reform (FAIR) Act.” If enacted, the bill will propel Alabama past North Carolina and establish it as the clear leader when it comes to asset forfeiture law. Alabama’s existing asset forfeiture regime, which makes extensive use of civil forfeiture, is one of the worst in the country. SB 213 would repeal that forfeiture regime in its entirety and replace it with a new regime that eschews civil asset forfeiture altogether.
As it has with other bills in other states, the Institute for Justice helped draft the Alabama bill. In a press release following the bill’s introduction, Senior Legislative Counsel Lee McGrath said:
This bill will ensure that only convicted criminals—and not innocent Alabamians—lose their property to forfeiture. No one acquitted in criminal court should lose his or her cash, car, or home in civil court.
While North Carolina’s asset forfeiture regime is very good, if SB 213 passes Alabama’s asset forfeiture regime will be even better, which is something we in North Carolina should probably take note of. However, from our point of view, the most noteworthy thing about SB 213 isn’t what it does to protect Alabama’s citizens from asset forfeiture abuse under state law; it’s what it does to ensure that state and local law enforcement agencies can’t use federal law to circumvent that protection. As I explained in a recent Spotlight, North Carolina’s existing laws do nothing to curtail circumvention, and, we a result, we rank among the worst states in the country in that regard. It therefore behooves all of us, but especially the members of our legislature, to take a good look at the measures that are under consideration in Alabama.
State and local law enforcement agencies use two kinds of federal asset sharing programs to circumvent state forfeiture laws. The most commonly used is the so-called “adoption” program, under which state and local law enforcement agencies are permitted to process seized assets in federal courts under federal law and then have the bulk of the proceeds (typically 80 percent) returned to them for their own use. Virtually all adoptions are processed under federal drug law, and SB 213 simply bans such adoptions outright:
A law enforcement agency shall not refer, transfer, or otherwise relinquish possession of property seized under state law to a federal agency by way of adoption of the seized property or other means by the federal agency for the purpose of the property’s forfeiture under the federal Controlled Substances Act.
Circumvention of state asset forfeiture laws also occurs when state and local law enforcement agencies work with federal law enforcement agencies in joint task forces. When a joint task force seizes property and processes it under federal law, some of the proceeds are typically returned to the participating state and local agencies to reward them for their part in the operation.
Because joint task forces play a potentially valuable role in law enforcement, reformers have been reluctant to ban them outright. Instead, the usual approach is to reduce the risk of abuse by making abuse unprofitable. Here’s how SB 213 accomplishes that goal:
A law enforcement agency or participant in a task force with the federal government or other multijurisdictional collaboration with the federal government shall not accept payment of any kind or distribution of forfeiture proceeds or property resulting from a joint task force with the federal government or other multijurisdictional collaboration with the federal government unless the aggregate net equity value of the property or currency forfeited in a case exceeds one hundred thousand dollars ($100,000), excluding the value of contraband.
According to the Institute for Justice, only about 5 percent of joint task force operations involve seizures that exceed the $100,000 threshold, and abuse is relatively unlikely in such large, multi-agency operations. By removing the incentive for abuse in the other 95 percent of cases, this provision ensures that state and local law enforcement agencies will only participate in joint task force operations that are justified by public safety considerations alone.
It remains to be seen whether the Alabama legislature will approve SB 213. It’s worth noting, however, that 24 states and the District of Columbia have enacted asset forfeiture reforms in recent years, and, in eight of those jurisdictions, the reform measures have included anti-circumvention provisions. To repeat what I said in a previous Legal Update, “North Carolina has always been a leader when it comes to asset forfeiture, but that doesn’t mean we have nothing to learn.” We should study what these other states have done and incorporate the best features into an anti-circumvention law of our own.