Is Civil Asset Forfeiture Reform Making Progress?

New Hampshire’s new civil asset forfeiture law signals gains, but law enforcement can still take your money and property.

Last Friday, New Hampshire governor Maggie Hassan signed SB 522 into law, making the Granite State the eighth state this year to address civil asset forfeiture reform. The law, which requires a criminal conviction or plea agreement before law enforcement can seize an owner’s property, also raises the standard of proof to “clear and convincing evidence” and requires the attorney general to provide detailed accounting of how law enforcement agencies use funds collected through forfeiture.

Civil asset forfeiture is employed by federal, state, and local authorities to seize property from an individual without necessarily beginning criminal proceedings against that individual.

Typically, civil asset forfeiture laws allow the vast majority of proceeds from forfeitures to go directly into law enforcement budgets. As a result, the practice has come under scrutiny because it creates perverse incentives for law enforcement, one of many objections to the practice.

Furthermore, under most existing forfeiture laws, seizing someone’s property requires less proof than does convicting that person of a crime. Once an asset is seized, the burden of proving that the asset was not connected to criminal activity typically rests with the owner, requiring litigation that’s time-consuming and expensive. Most asset owners don’t have the means to fight a prolonged legal battle to reclaim their property.

“This isn’t really about good cops and bad cops, this is about good incentives and bad incentives.”

What this all adds up to is that in many cases—such as those documented in investigative pieces in The Washington Post and The New Yorker—law enforcement authorities pursue the seizure of assets for which criminal involvement is, at best, unclear. Thus, civil asset forfeiture represents a significant deterioration of the property and due process rights of ordinary citizens.

Before SB 522, New Hampshire exemplified how problematic these incentives could be, as the state received a “D-” in a November 2015 report from the Institute for Justice.

This past January, the Charles Koch Institute brought together a panel of criminal justice experts to discuss forfeiture in the Granite State. “This isn’t really about good cops and bad cops,” noted Robert Peccola, an attorney with the Institute for Justice, “this is about good incentives and bad incentives.”

Peccola’s fellow panelist Gilles Bissonnette, legal director of the ACLU of New Hampshire, agreed that civil asset forfeiture is “putting the cart before the horse,” since people’s property is taken before they are charged with a crime.

New Hampshire’s new law addresses these concerns. “Civil forfeiture is one of the most serious assaults on due process and private property rights in America today,” Peccola said last week. “Under this new law, only convicted criminals—and not the innocent—will their property to forfeiture.”

Circumventing Reform: The Equitable Sharing Program

SB 522 makes strides toward eliminating law enforcement’s incentive to profit from forfeiture, but, unfortunately, loopholes still exist. The Department of Justice’s Equitable Sharing Program, for example, limits the tangible impact of forfeiture reform. Through this program, state law enforcement authorities otherwise constrained by strict state laws can have their seizures processed and litigated by the federal government. In return, state authorities receive 80 percent of the proceeds from successful forfeitures.

In December 2015, the Justice Department suspended the program, but that decision was reversed in May, when the department announced it would resume payments to local law enforcement agencies.

Once again, state law enforcement authorities simply have to find a basis for federal involvement in a case, and seizures can proceed under the Equitable Sharing Program — even if those seizures are contrary to reforms made by state lawmakers.

This is bad news, both for property owners and for state and local legislators who have reformed or who intend to reform civil asset forfeiture practices. As long as equitable sharing continues, police will be able to work around civil forfeiture reforms, rendering these protections of property less effective.

Additionally, as the Institute for Justice’s Nick Sibilla explains in Forbes, SB522 “does not end law enforcement’s appalling incentive to profit from forfeiture cases” because New Hampshire law enforcement agencies can keep 45 percent of the proceeds from forfeiture cases.

As New Hampshire joins over a dozen states that have reformed their forfeiture laws since 2014, it should be lauded for combating perverse incentives to police for profit. But even though “SB 522 is an encouraging reform package,” says the Institute for Justice’s Lee McGrath, “more work needs to be done.”

In order to continue to explore and find solutions to civil asset forfeiture, the Charles Koch Foundation requests proposals for research regarding this topic and others related to criminal justice and policing reform.

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