Fix forfeiture laws in Buckeye State

This op-ed was originally published at the Cincinnati Enquirer on December 4, 2015.

“I had no idea something like this could happen in America.” That’s what Antoinette Lattimore, a resident of North College Hill near Cincinnati, said about the seizure of the $19,660 in cash she was carrying on a road trip in 2013 to Tucson, Arizona, where she hoped to purchase African art.

The cash was seized by a Dayton police officer on the mere suspicion that it was connected to the drug trade. Lattimore wasn’t arrested, nor was she charged with a crime. “I’ve never been arrested before in my life,” she said. “I even could prove that it was my money, but that didn’t matter.”

Lattimore was a victim of a little-known tool called civil asset forfeiture, a process by which the government can seize money and forfeit it based on a very low standard of evidence. The presumption of innocence, a bedrock principle of the American legal system, and due process protections in the Ohio and U.S. constitutions, are thrown out the window. Cash or property subject to forfeiture is guilty until proven innocent by the property owner.

In Lattimore’s case, the seizing local law enforcement agency sought forfeiture of the cash in federal court, where, if successful, it would receive up to 80 percent of the proceeds from the Department of Justice’s Equitable Sharing Fund. State and local law enforcement in the Buckeye State has reaped a windfall from this program, taking in “more than $80 million from 2000 to 2008,” according to a 2010 report from the Institute for Justice.

Facing a lengthy process and mounting attorney’s fees, Lattimore settled. She received $11,000 of the cash back but pocketed only $8,000 after legal expenses.

Civil asset forfeiture has an interesting history in American law. In the early days of the republic, it was used in admiralty law to prevent smuggling and enforce tariff laws, from which the United States received a substantial portion of its revenues. Use of forfeiture was expanded in the early 20th century to enforce alcohol prohibition. In 1984, the Comprehensive Crime Control Act created the Department of Justice’s Assets Forfeiture Fund, and use of civil asset forfeiture subsequently exploded.

Ohio’s civil asset forfeiture laws aren’t much better. Like federal forfeiture laws, cash or property can be subject to forfeiture based on a very low standard of evidence and the burden of proof falls on the property owner. Law enforcement has an incentive to seize property because it can keep up to 100 percent of the proceeds.

Legislation has been introduced to fix forfeiture in Ohio. House Bill 347, sponsored by Republican state Rep. Robert McColley, would restore due process in the state’s civil asset forfeiture laws, requiring a criminal conviction – that is, proof beyond a reasonable doubt – before seized cash or property can be subject to forfeiture. The bill also addresses circumvention of protections for innocent property owners in state law by prohibiting forfeiture of seized cash or property through federal forfeiture law unless the value exceeds $50,000.

Contrary to what opponents of House Bill 347 may say, it doesn’t prevent seizure and it doesn’t affect policing. It merely requires that a criminal conviction be obtained in court before property can be subject to forfeiture.

Importantly, the centerpiece of House Bill 347 has significant support from Ohio voters. According a recent survey, 90 percent – including 92 percent of self-identified Republicans – believe a criminal conviction should be a prerequisite to forfeiture. Only 7 percent of respondents support the status quo.

House Bill 347 would restore the presumption of innocence on which the American legal system is based and due process rights guaranteed by both the Ohio and United States constitutions.