Policing and Property Rights: What’s Next for Civil Asset Forfeiture?

This panel treated civil asset forfeiture, a practice employed by law enforcement authorities to seize property without necessarily beginning criminal proceedings against the property holder. Panel members discussed how the practice represents a significant erosion of the property rights of ordinary citizens.

John Malcolm, director of the Heritage Foundation’s Center for Legislative and Judicial Studies, stressed that the need for reform is not about depriving law enforcement authorities of their funds. Law enforcement should be generously funded, according to Malcolm, but not through a practice at odds with procedural fairness. Civil asset forfeiture flips the notion of “burden of proof” on its head, requiring that the property owner prove the asset’s “innocence.”

Darpana Sheth, an attorney with the Institute for Justice, explained the practice at the federal level, noting how the federal government provides a loophole for state law enforcement through the Department of Justice’s equitable sharing program. The program allows local and state law enforcement agencies to seize assets and forfeit them through the federal courts, instead of through the courts of the state where the seizure occurred.

Hal Stratton, the former attorney general of New Mexico, detailed how, after a series of abuses surrounding asset forfeitures came to light in the state, the legislature and governor responded to the public outcry and enacted sweeping reform legislation. Having been involved in a previous series of criminal justice policy changes in the state, Stratton noted that he feels particularly responsible for the misuse of the practice and testified to the legislature about the serious need for reform.

Nelson Bunn, policy director for the National District Attorneys Association, defended the practice of civil asset forfeiture, noting the practice’s legitimate uses. He argued that asset forfeiture is a valuable tool for law enforcement. Bunn cited the example of an Enron executive who died before trial and whose assets were seized to restore money to victims who had been defrauded by the company.

Derek Cohen, deputy director of the Center for Effective Justice at the Texas Public Policy Foundation, moderated the panel and closed by drawing out clear reform priorities from the panelists. These included raising the burden of proof required for asset forfeitures, as well as requiring a prompt hearing after an asset has been seized. To learn more about how you can get involved, please visit the Charles Koch Foundation’s Request for Proposals page.

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