Progress Against Civil Asset Forfeiture, Part II

State By State

Civil Forfeiture Now Requires A Criminal Conviction In Montana And New Mexico

Forbes
Nick Sibilla


Just in time for the Fourth of July, states are declaring their independence from civil forfeiture.
Enabled by civil forfeiture laws, police can seize and keep property without the government ever filing criminal charges. Innocent Americans actually must prove their own innocence in court if they ever hope to regain their property. Local, state and federal law enforcement agencies routinely seize property and pad their budgets with forfeiture revenue. Outlets as diverse as The New Yorker and Last Week Tonight with John Oliver have detailed this travesty of justice.

But thankfully, civil forfeiture’s days may soon be numbered. Starting July 1, two major reforms from Montana and New Mexico will go into effect.

Earlier this year, Montana Gov. Steve Bullock signed a law that requires the government to first obtain a criminal conviction before taking and keeping someone’s property through civil forfeiture.  This legislation also shifts the burden of proof onto the government—where it belongs—when spouses, neighbors and other innocent owners try to get back property used by a suspect without their knowledge. Montana’s civil forfeiture reforms are vital to restore due process and protect the property rights of the innocent.

The Montana State Legislature.

New Mexico went even further and abolished civil forfeiture outright.
As in Montana, law enforcement can only forfeit property after a criminal conviction. Crucially, this new law requires that all forfeiture money be deposited in the general fund, preventing it from becoming a police slush fund. Without a single vote cast against it, Gov. Susana Martinez (and a former prosecutor) signed this landmark reform on April 10.

Impetus for reform came after the Institute for Justice and The New York Times uncovered unsettling comments made last fall. Speaking at a forfeiture conference, Pete Connelly, then the city attorney for Las Cruces, New Mexico, called civil forfeiture “a gold mine,” and told attendees, “We could be czars. We could own the city.”
 
Even former stalwart proponents of civil forfeiture have undergone road to Damascus moments. Hal Stratton, a former Republican Attorney General for New Mexico, once backed expanding forfeiture. But in March, he publically urged Gov. Martinez to abolish civil forfeiture. More remarkably, Brad Cates and John Yoder, who both headed the Justice Department’s Asset Forfeiture Office during the Reagan Administration, took to The Washington Post last year to decry civil forfeiture as a “corruption,” calling it “fundamentally at odds with our judicial system and notions of fairness.”

To overhaul the nation’s civil forfeiture laws, lawmakers should follow a four-step approach. Crucially, none of these reforms would affect the ability of law enforcement agencies to take assets from convicted criminals.

First, lawmakers must remove the profit incentive behind civil forfeiture. Allowing police and prosecutors to keep what they seize has enriched law enforcement at the cost of Americans’ constitutional rights. Since 1985, the Justice Department’s Asset Forfeiture Fund has grown from $27 million to over $2 billion in 2013. Nationwide, more than 500 police departments and task forces have seized the equivalent of 20 percent or more of their yearly budgets. To end this appalling incentive to police for profit, legislators should direct all forfeiture proceeds either to the general fund or to a specified neutral fund, like education.

Second, reforms should ensure that property owners are innocent until proven guilty. Denying due process, those facing civil forfeiture often have to prove their own innocence in court.

Third, more states should follow the lead of Montana and New Mexico and require a criminal conviction before forfeiting property. Such a common-sense approach to law enforcement is currently on the books in only four states (Minnesota and North Carolina are the other two).

Finally, states should restrict the ability to participate in the federal “equitable sharing” program. Local and state law enforcement can take up to 80 percent of forfeiture proceeds, if they partner with a federal agency. Appallingly, collaboration can occur even in states that tightened their forfeiture laws, clearly undermining principles of federalism.

New Mexico’s legislation bans its law enforcement from transferring seized property to a federal agency, unless the property at stake is worth at least $50,000. The law also prohibits such transfers if they would “circumvent the protections” state law provides for New Mexicans.

As the renowned economist Frédéric Bastiat once wrote, “It is impossible to introduce into society a greater change and a greater evil than this: the conversion of the law into an instrument of plunder.” No American should ever lose his property without first being convicted of a crime.

[New Zealand has its equivalent of asset forfeiture, and it can be applied without conviction of crime.  It is known as the Criminal Proceeds (Recovery Act) 2009.  The order must be given by the Court, which applies a "balance of probabilities" test.

Criminal Proceeds (Recovery) Act 2009

If the Police suspect that an individual has benefitted from a bribe or corrupt activity, the Criminal Proceeds (Recovery) Act 2009 allows the Crown to recover the money or property derived from this crime.

The Act allows the Police to apply to the court to freeze or recover money or property derived from crime.   This may include the immediate profits of crime (such as the money obtained from accepting a bribe) or the indirect benefits (such as a car purchased using money obtained through fraud). The purpose of the regime is to take the profit out of crime, remove the tools of crime, and potentially compensate victims using recovered criminal proceeds.

Under the Act, the proceeds of crime may be recovered by the Crown regardless of whether the individual has been convicted for criminal offending. Assets can be forfeited if the court is satisfied on the balance of probabilities that the assets were acquired as a result of criminal activity.  NZ Ministry of Justice.]