Congress Should Learn from States on Civil Asset Forfeiture

This op-ed was originally published at The Hill on December 12, 2016.

The Ohio Legislature recently joined the growing ranks of states to pass civil asset forfeiture reform. More than a year in the making, both chambers passed, by overwhelming margins, House Bill 347, which, in most instances, requires a criminal conviction for the state to permanently seize property from an individual.

Civil asset forfeiture is the process by which state and local law enforcement can seize property believed to have a connection to illicit activity. In the vast majority of states, as well as the federal government, the property owner doesn’t have to be arrested, charged, or even convicted of a crime. Property can be subjected to forfeiture based on a low evidentiary standard and, in a perversion of justice, the burden of proof falls on the property owner, not the government.

Under current Ohio forfeiture law, prosecutors need only show a preponderance of the evidence — or 51 percent likelihood that the government’s claim that the property is connected to illicit activity is true — to subject property to forfeiture. Law enforcement can keep up to 100 percent of the proceeds from forfeitures. According to the Institute for Justice, law enforcement agencies in the Buckeye State reported more than $23 million in forfeited property between 2010 and 2012.

Ohio isn’t alone in passing forfeiture reform. Earlier last year, New Mexico passed the strongest forfeiture reform law in the country, requiring a criminal conviction as a prerequisite to forfeiture. Florida, Michigan, and Montana have also passed forfeiture reforms that protect the rights of innocent property owners.

Sadly, the building momentum in the states hasn’t caught on in Congress. The last major overhaul of federal civil asset forfeiture laws happened in 2000, with the passage of the Civil Asset Forfeiture Reform Act (CAFRA). While initially protective, the bill was watered down during the legislative process, making its protections for innocent property owners far less meaningful.

“The first year following CAFRA’s passage did witness a significant drop in the value of assets seized by the federal government — from nearly $313 million in 2000 to just under $200 million in 2001,” wrote former Georgia Republican Rep. Bob Barr, who voted for CAFRA. “As ever, Uncle Sam has moved aggressively to make up that difference in recent years; raking in more than $1.0 billion in forfeited civil assets in 2013 alone.

“The staggering dollar amounts reflected in these statistics, however, does not pinpoint the real problem in how law enforcement agencies at all levels of government employ the power of asset forfeiture as a means of harming, and in many instances destroying, the livelihood of individuals and small businesses,” Barr explained.

One major problem in federal forfeiture law is the Department of Justice’s Equitable Sharing Program. This program allows state and local enforcement agencies working in conjunction with federal agencies to seize property and subject it to forfeiture under federal law, under which the burden of proof falls on the property owner. Prosecutors need only present a preponderance of the evidence to permanently seize property. State and local law enforcement agencies can receive up to 80 percent of the proceeds through equitable sharing. This loophole allows state and local law enforcement agencies to circumvent protections in state forfeiture law.

Some states — like Ohio and New Mexico — have sought to prevent circumvention of state forfeiture laws by allowing law enforcement to use equitable sharing only if the value of seized property surpasses a certain dollar amount.

In May, Wisconsin Republican Rep. Jim Sensenbrenner, a member of the House Judiciary Committee, introduced the Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures (DUE PROCESS) Act.

While the DUE PROCESS Act didn’t address equitable sharing, the bill raised the evidentiary standard to clear and convincing from a preponderance of the evidence, shifted the burden of proof to the government, and offered some meaningful procedural changes to protect innocent property owners. The DUE PROCESS Act was marked up in committee, but it was never brought to the floor for a vote.

While states are leading on civil asset forfeiture reform, Congress should revisit this issue next year and address the serious problems with federal forfeiture laws to protect innocent property owners and restore the rights to private property and due process.

Jason Pye (@Pye) is the director of public policy and legislative affairs at FreedomWorks.