Civil Asset Forfeiture

Current civil asset forfeiture laws allow law enforcement agencies to seize personal assets and use the proceeds for their budgets, even if the owner is never convicted of a crime. This contributes to a law enforcement agenda that targets property instead of crime and has proven to be widely subject to abuse and corruption.

In 1996 the New Mexico state legislature passed Senate Bill 10, which provided for, among other things, requiring a conviction of the rightful owner of the property and depositing the money in the general fund. Although Governor Johnson vetoed Senate Bill 10, he has stated that this was a mistake and indicated that he would sign a similar bill this year.

• When civil asset forfeiture proceedings are a civil action against a person's property, constitutional protections do not apply . The burden of proof falls on the property owner to prove that the property is "innocent," rather than on the law enforcement agency to prove that the property is actually drug-related. Often this is a lengthy and costly process for the property owner. This threatens the Fourth Amendment right against unreasonable search and seizures, the Fifth Amendment privilege against self-incrimination, and the Eighth Amendment prohibition against excessive fines. (1)
• The government can seize property without a criminal conviction or even having charged the owner with a crime . (2) It was reported in 1991 that 80 percent of the people who lost property to the federal government were never charged with a crime . (3)
• The United State Supreme Court has acknowledged that government seizures are "quasi-criminal in character," and are constructed "like a criminal proceeding . . . to penalize for the commission of an offense against the law." (4) In essence, the government is taking property to pay for an alleged crime for which there may never be a charge or conviction.
• The New Mexico Supreme Court ruled that property seizure pursued separately from criminal prosecution constitutes double jeopardy in New Mexico; and that in forfeiture proceedings also involving criminal prosecution, the state must "prove by clear and convincing evidence that the property in question is subject to forfeiture." (5) Some local law enforcement agencies have worked with federal law enforcement agencies to bypass this ruling and the New Mexico Constitution. (6)
• Federal, state and local "equitable sharing" agreements , which give state and local agencies the lion's share of seized assets even when federal agents were involved in the arrests, have resulted in a major shift toward federal jurisdiction over local law enforcement . (7)
• From 1996 to 1999, it is conservatively estimated that the U.S. Department of Justice accepted over $208 million in seizures from state and local police . (8) Most of this money was returned to the states for use in their law enforcement budgets. This distorts policing by providing an incentive for federal, state, and local law enforcement to focus on seizing property to maintain their drug enforcement budgets, often at the expense of enforcement of laws against violent crimes like robbery, rape, and murder .
• Across the country, numerous newspaper and television research sources have demonstrated that innocent property owners were having their property taken by federal and local law enforcement officers without due process. (9)
• In November of 2000, Oregon and Utah overwhelmingly passed voter initiatives to curb asset forfeiture abuses. As a result of these initiatives, police and prosecutors will have to prove the property was involved in a drug crime before it can be seized, and proceeds will go toward public education or drug treatment instead of directly to the police .

NOTES:

1. See Boyd v United States, 116 US 616, 634 (1886)

2. See United States v. A Single Family Residence and Real Property Located at 900 Rio Vista Blvd., Ft. Lauderdale, 803 F.2d 626, 629 n.2 (11th Cir. 1986).

3. "Government Seizures Victimize Innocent," Pittsburgh Press, August 11, 1991.

4. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700 (1965)

5. 2 P.3d 264 (N.M. 1999)

6. "Cash in Custody," Kansas City Star, May 19, 2000

7. Blumenson, E. & and Nilsen, E., "Policing for Profit: The Drug War's Hidden Economic Agenda," University of Chicago Law Review, 65: 35-114 (1998, Winter).

8. "Cash in Custody," Kansas City Star, May 19, 2000

9. See, e.g., Brazil & Berry, Tainted Cash or Easy Money?, Orlando Sentinel, June 14-17, 1992; Schneider & Flaherty, Presumed Guilty: The Law's Victims in the War on Drugs, Pitt. Press, Aug. 11-16, 1991; Poor & Rose, Hooked on the Drug War, St. Louis Post-Dispatch, Apr. 28-May 5, 1991; The Clarion-Ledger, Jackson, MS, April 18, 2000; Walker, "Forfeiting Sense", Reason Magazine, February, 2000.