A Tennessee state legislator has introduced a bill to abolish civil asset forfeiture, the controversial legal power that allows police to confiscate and keep property without ever charging the owner with a crime. The bill, sponsored by Rep. Barrett Rich (R-Somerville), would require a criminal conviction of the owner to permit law enforcement to keep any property associated with the crime.
According to the libertarian law firm Institute for Justice, every state in the country has some version of a civil asset forfeiture law. Under Rich's bill, Tennessee would be the first to abolish it.
Asset forfeiture generally is a centuries-old legal doctrine that allows the government to seize property used in the commission of a crime. Starting in the late 1970s, the U.S. government began to expand the principle to include not only property used to commit a crime, but any "ill-gotten gains" from criminal activities like drug dealing or racketeering. By the mid-1980s, the concept had further expanded to allow the government to seize property in a civil proceeding without bringing criminal charges against the owner. In 1986, Congress created a program that permitted the law enforcement agencies that conducted the seizures to receive the proceeds from them. Most states then passed similar laws.
Critics say the policy provides a strong incentive for police to find connections, however tenuous, between illegal drugs and other property. Indeed, countless stories of alleged forfeiture abuse moved Congress to revise the policy in 2000. But opponents argue the revised federal policy still goes too far. And many states still have policies that mirror the pre-2000 federal law.
So the stories of abuse have continued. Just this month, for example, the owners of the Motel Caswell in Tewksbury, Mass., won a years-long fight to keep the federal government from seizing their business. In that case, the government didn't even allege the owners were involved in any criminal activity. Instead, prosecutors argued that the Caswell family didn't do enough to prevent other people from committing drug crimes while staying at the hotel. As evidence, they cited 15 drug-related incidents at the hotel over a 15-year period. None involved the Caswells or anyone they knew. The family's fight to keep their business required a half-million dollars' worth of legal services -- although some of the defense was handled pro bono by the Institute for Justice.
In Tennessee, the laws are particularly favorable to law enforcement. The Institute for Justice recently gave the Volunteer State a "D" grade for its failure to protect property owners from unjust seizures. The organization found that state law "effectively presumes owners are guilty" and that the "property owner bears the burden of proof" to show that he or she is innocent. The state also doesn't require police agencies to keep records of their forfeiture bounties and allows them to keep "100 percent" of forfeiture proceeds.
That can create some odd incentives. For example, in a 2011 report, Nashville's News Channel 5 found that the vast majority of police stops looking for suspected drug smugglers were made on the side of the highway leaving the city, not the side entering it. For police coffers, it was better to let the drugs come into Nashville, be sold and then seize the cash as the dealers left town.
Likewise, in a 1994 study published in the journal Justice Quarterly, criminologists J. Mitchell Miller and Lance H. Selva found that several police agencies delayed making busts of suspected drug houses until most of the drug supply had been sold. They waited until the drugs had already hit the streets so that they could maximize their forfeiture bounty.
Interestingly, Rich, the sponsor of the Tennessee bill, is a former state trooper. The bill has also brought about an unusual alliance among a former police officer-turned-state representative backed by the National Rifle Association, a free-market think tank based in Nashville, and the Tennessee Civil Liberties Union.
But that has often been the case with forfeiture. Much of the call for reform over the years has come from alliances between conservatives, who are appalled by forfeiture laws' disregard for property rights, and progressives, who are alarmed by the laws' tendency to encourage racial profiling on the highways and their disproportionate effect on the poor. Simply carrying a lot of cash, for example, is often seen by police as an indication of illegal drug activity, and the poor and undocumented immigrants are more likely to carry cash. (Last year, HuffPost reported on Wisconsin cases in which police had seized bail money in an attempted forfeiture after drug dogs alerted to the scent of drugs on the cash.) People are also less likely to go to court to demand the return of smaller amounts of cash or property of lesser value -- even if they're innocent -- because the cost of winning it back often exceeds its value.
Consequently, police in some jurisdictions have run forfeiture operations that would be difficult to distinguish from criminal shakedowns. Police can pull motorists over, find some amount of cash or other property of value, claim some vague connection to illegal drug activity and then present the motorists with a choice: If they hand over the property, they can be on their way. Otherwise, they face arrest, seizure of property, a drug charge, a probable night in jail, the hassle of multiple return trips to the state or city where they were pulled over, and the cost of hiring a lawyer to fight both the seizure and the criminal charge. It isn't hard to see why even an innocent motorist would opt to simply hand over the cash and move on.
"There's no required reporting system on how states are using forfeiture," said Larry Salzman, a lawyer with the Institute for Justice. "But we estimate that roughly 90 to 95 percent of forfeitures never go to court. They're never heard by a judge. And the biggest victims are innocent owners who somehow get entangled in the system."
Even if Rich's bill passes, it likely wouldn't end the practice in Tennessee.
Though no state has gone quite as far toward ending civil asset forfeiture as Rich's legislation would, many states have made other attempts to rein in the practice. For example, some states require forfeiture proceeds to go into a fund for public schools, or the state's general revenue fund. The intent is to remove the perverse incentives for police departments.
But the federal government has provided a way for state and local law enforcement agencies to get around those reforms. Under a program called Equitable Sharing, all a state narcotics officer working on a case that promises a forfeiture bounty needs to do is call up the nearest field office of the Drug Enforcement Administration, Immigration and Customs Enforcement, or the Bureau of Alcohol, Tobacco, Firearms and Explosives, and ask federal officers to assist in the investigation. The case is now governed by federal law. The federal agency takes a cut of the forfeiture proceeds and distributes the rest -- usually 70 to 80 percent -- back to the local police agency. The program explicitly prohibits any forfeiture proceeds from being used for non-law enforcement purposes. It was designed to help police agencies undermine the efforts of state legislatures to curb forfeiture abuses.
One thing that reform-minded legislators could try to do is pass a law forbidding state police agencies from participating in the Equitable Sharing program. That would bring up some of the same interesting questions about federalism, pre-emption and nullification currently being debated with the Affordable Care Act and marijuana legalization laws.
But Salzman said Rich's bill matters even if Tennessee's drug cops can get around it by taking cases federal.
"We'd love to see a law like this at the federal level," he said. "But even if it may be in some ways symbolic, it states the important principle that in Tennessee state courts, property owners have rights -- that the government can't take property away from you and then force you to prove your innocence in order to get it back."
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