by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
In former times, back before Covid and the government’s response put a damper on my optimism, I published a series of blog posts and research briefs in which I discussed some of the many reasons I feel lucky to live in North Carolina. (See here, here, here, here, here, and here.) A recent report by the Competitive Enterprise Institute has inspired me to restart that series. The report is called, “‘They’re Taking My Stuff!’ What You Need to Know about Seizure and Forfeiture.” Here’s an excerpt from the Executive Summary:
Law enforcement officers in the United States seize billions of dollars in cash and other personal property from members of the public every year. … These seizures and forfeitures rarely require proof of criminal conduct; rather, they often rest merely on the suspicion that the property in question is related to a crime. … Furthermore, because the proceeds of forfeiture typically go straight to law enforcement budgets, this creates perverse incentives that make it more likely that law enforcement officers and prosecutors might devote disproportionate effort to this endeavor. [Emphasis added.]
It’s an interesting report, and it contains some useful advice about how to avoid having one’s assets seized during a police stop. I’m happy to report, however, that North Carolinians have less need of that advice than the citizens of most other states. That’s because North Carolina state law has always done a good job of protecting our citizens from the kind of forfeiture abuse described in the report. Here’s what we say in our Policy Guide about how North Carolina’s forfeiture laws differ from the laws in other states:
Civil asset forfeiture is a legal process that authorizes the confiscation of property suspected of having been used for, or derived from, criminal activity. Because the action is against the property itself, there is no need to convict the owner of the underlying crime. Indeed, the owner does not even need to be charged. And because it is a civil rather than a criminal action, the link between the property and the crime does not need to be proved beyond a reasonable doubt; a “preponderance of the evidence” is sufficient.
Civil asset forfeiture is inherently unjust. It violates property rights and the right to due process. Perhaps worst of all, it perverts the proper relationship between the police and the public by turning the former into predators and the latter into their prey. Despite these defects, however, the federal government started making extensive use of the practice in the 1970s, and, in the years that followed, most states enacted similar civil asset forfeiture laws of their own.
Fortunately, North Carolina did not go along with that national trend. Under our criminal asset forfeiture statutes, property linked to a crime is only subject to forfeiture after the property’s owner has been convicted of that crime. And under the North Carolina Constitution, asset forfeiture proceeds do not revert to the agency that made the seizure. Instead, they must be used for maintaining public schools. [Emphasis added.]
These features of North Carolina law protect the innocent and discourage abuse and have earned the state high marks in repeated editions of the Institute for Justice’s “Policing for Profit” report. In 2015, they also earned the state the top score in a report by FreedomWorks titled “Civil Asset Forfeiture: Grading the States.”
That doesn’t mean North Carolinians have nothing to fear (see here, here, and here), but compared to other states our legislature has done exemplary job of protecting our due process and property rights, and as a result relations between the police and the public have been better in North Carolina than in states that lack those protections. It’s yet another reason I feel lucky to be here!