Civil Asset Forfeiture: Time for Reform in Oklahoma?

Last week the Charles Koch Institute joined the Oklahoma Council of Public Affairs (OCPA) in Oklahoma City to host an event highlighting the problematic nature of civil asset forfeiture. Increased awareness of this practice has led to currently proposed reforms in the state.

The event kicked off with remarks from Jonathan Small, president of OCPA, followed by an introduction by Alison Fraser, managing director of policy and research at the Charles Koch Institute. Both noted how their organizations’ focus on individual rights and human dignity demands they raise awareness of how current civil asset forfeiture law in Oklahoma has led to the erosion of property and due process rights.

Eric Alston, the Institute’s senior policy and research analyst in criminal justice and policing reform, opened the panel conversation by discussing how Oklahoma is among the states considering reform to its civil forfeiture practices due to a recent increase in awareness of the problem.

One of the main reasons civil forfeiture has come under scrutiny is because of the perverse incentives it creates for law enforcement. Since civil asset forfeiture law typically allows the vast majority of the proceeds from forfeitures to go directly into law enforcement budgets, officers are frequently incentivized to aggressively pursue asset seizures rather than prevent or solve crime.

Brad Cates, who was the director of the U.S. Justice Department’s Asset Forfeiture Office from 1985 to 1989, contrasted the origins of civil forfeiture with how far it has gone off the rails today. For example, he detailed the experience of a man whose money was seized by law enforcement authorities while he was traveling through New Mexico. There was no evidence he had committed a crime, and no criminal charges were brought against him.

Cates’ example highlights a pervasive problem: Under existing forfeiture laws, it is easier to seize someone’s property than to convict that person of a crime. Furthermore, once an asset is seized, the owner is typically responsible for proving the property’s innocence. Dan Alban, an attorney with the Institute for Justice, commented on just how difficult and costly it is for individuals to get their property back. For many asset owners, it is not worth the time and cost.

On a more hopeful note, the panelists highlighted a range of reforms that occurred over the course of 2015. For example, in April 2015, New Mexico’s governor signed a bill into law that effectively abolished civil forfeiture for seizures under $50,000 in value, instead requiring a criminal conviction before forfeitures can occur.

Panelists further noted the suspension of the U.S. Department of Justice’s equitable sharing program. Previously, the program helped law enforcement authorities in states with stricter civil asset forfeiture laws to circumvent those laws by processing seizures through the federal government. The suspension of this practice means that changes to state civil asset forfeiture laws, if enacted, will truly be borne out in practice.

Attorney David Smith, who has an extensive litigation background in federal criminal appeals as a prosecutor and defense attorney, and who authored the leading treatise on forfeiture law, emphasized the troubling nature of asset forfeiture practices on the federal level while also highlighting some promising reforms that will go before Congress this year.

The Charles Koch Institute sponsors events like this one in order to spotlight government practices that inadequately respect the property and due process rights that should be accorded to every individual. The level of demand for reform to the practices in Oklahoma indicates that Oklahomans are similarly concerned about the practice of civil asset forfeiture in their state.

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