Evolving Civil Asset Forfeiture Laws Did You Know? by ANNE TEIGEN and LUCIA BRAGG Or Sell It and Keep the Proceeds to Fund a Number • Justice Clarence of Activities

LegisBrief A QUICK LOOK INTO IMPORTANT ISSUES OF THE DAY

FEB 2018 | VOL. 26, NO. 5

Civil Asset Forfeiture in the States Standards of Proof ME High Beyond a Reasonable Doubt AK VT NH

WA MT ND MN WI MI NY MA RI Clear and Convincing Evidence

Standards of Proof STANDARD OF PROOF ID WY SD IA IL IN OH PA NJ CT High Beyond a OR NV CO NE MOReasonableKY DoubtWV VA DC DE

STANDARD OF PROOF Preponderance of the Evidence HI CA UT NM KS AR TN NC SC MD Clear and Convincing AZ EvidenceOK LA MS AL GA

Preponderance TX FL of the Evidence Probable Cause

Allow for civil asset forfeiture Probable Cause Require criminal conviction AS GU MP PR VI Reasonable Abolished civil asset forfeiture Suspicion Low Source: Institute for Justice, 2018 Low Reasonable Suspicion Evolving Civil Asset Forfeiture Laws Did You Know? BY ANNE TEIGEN AND LUCIA BRAGG or sell it and keep the proceeds to fund a number • Justice Clarence of activities. Depending on the law, the proceeds Thomas issued an All states and the federal government allow law can be used for law enforcement expenses, such opinion criticizing enforcement to seize and forfeit cash, property as investigative activities, equipment, restitu- civil forfeiture laws in and other materials they believe are associated tion payments to crime victims, drug education 2017. with illegal activity. These forfeitures can happen programs, prosecutorial costs, or to supplement • According to the in two ways: criminal or civil. Criminal asset school budgets. Institute for Justice, forfeiture proceedings occur against a person approximately after being convicted of an underlying criminal Law enforcement and proponents of civil asset 15 states now offense. In civil asset forfeiture, once property has forfeiture argue it is a key tool that helps defund publish forfeiture organized crime, prevent new crimes from being information online. order to forfeit, or keep, the property of someone committed and weaken criminal cartels. Critics suspectedbeen seized, of prosecutorsbeing involved can in file an civil illegal actions activ -in of civil forfeiture argue that it denies property • North Carolina, New Mexico and Nebraska ity. The action is against the property—not the owners basic due process rights, and that giving have abolished civil person—and can be seized even if the person is - forfeiture entirely. not charged or convicted of a crime. ture can distort their priorities and encourage Forfeiture laws allow the government to keep the thelaw pursuitenforcement of property a financial over stakethe administration in civil forfei seized cash and property, destroy the property, of justice. Federal Action nal conviction (proof beyond a reasonable doubt) to engage in some or all forfeiture proceedings. Civil asset forfeiture has its roots in maritime and California, Iowa and Ohio exclude property valued customs law, but modern civil asset forfeiture under a certain amount from the criminal convic- Additional practices were introduced by the Comprehensive tion requirement. North Carolina, New Mexico and Resources Crime Control Act of 1984. This law established the Nebraska have abolished civil forfeiture entirely. Assets Forfeiture Fund at the Department of Justice NCSL blog, SCOTUS (DOJ) for asset proceeds and the Equitable Sharing Even when law enforcement fails to make the Ruling Requires Program. Equitable Sharing allows state and local Relook at State Asset law enforcement agencies to transfer seized assets retrieving their property onerous, expensive and Forfeiture Laws case for seized property, owners can often find associated with federal crimes to federal agen- U.S. Department those who had no involvement with the alleged cies, which then carry out forfeiture proceedings. of Justice, Policy crime—oftentime-consuming. don’t As get a result, their property“innocent back. owners”— States Once the assets are successfully forfeited to the and Guidelines on are working to clarify and protect the rights of federal government, the proceeds are deposited in Federal Adoptions property owners by improving this process. For ex- an appropriate forfeiture fund and state and local of Assets Seized by ample, Michigan made a major change to its law in agencies receive a percentage of the total, depend- State or Local Law 2017. Previously, to challenge a property seizure, Enforcement particular case. the owners had to post a bond worth 10 percent of ing on the specific type and circumstances of a the property’s value, albeit no less than $250 and The Heritage In 2000, Congress comprehensively reorganized no more than $5,000. Failure to post bond within Foundation, An federal civil asset forfeiture law. The Civil Asset 20 days of the property’s seizure would result in an Overview of Recent Forfeiture Reform Act expanded forfeiture to automatic forfeiture. Under the new law, property State-Level Forfeiture owners are no longer required to post a cash bond Reforms procedural tools and time limits. In 2015, U.S. before they can challenge a civil forfeiture case Institute for Justice, Attorney“any specified General unlawful Eric Holder activity,” implemented and introduced a new in court. Similarly, Utah’s 2017 law provides that Civil Forfeiture policy prohibiting the federal agency forfeiture, if claimants are acquitted of the crime that gave Reforms on the State rise to the forfeiture, prosecutors must return Level law enforcement agencies, with a limited public their seized property. Oklahoma amended its law or “adoptions” of, assets seized by state and local safety exception. In 2017, U.S. Attorney General Jeff in 2015 to allow judges to award attorney fees to Sessions reversed the policy, allowing the federal people whose assets were found to be unjustly government to take all assets associated with fed- seized by law enforcement. Arizona has a similar eral crimes that have been seized lawfully by state provision in its comprehensive 2017 law. and local governments, and reviving the Equitable Sharing Program. Opponents of civil asset forfeiture laws cite a heightened risk for abuse because in many states, State Action law enforcement have incentive to seize property, as they receive some or all of the proceeds from its Though developments on the federal level have sale. To address this concern, some state legis- both tightened and relaxed controls on civil asset latures are directing where proceeds should go, forfeiture over time, states have passed their own with a focus on how much, if any, should be given civil asset forfeiture laws, creating considerable to law enforcement. Seven states and Washing- NCSL Contacts variation between states and even between types ton, D.C., direct 100 percent of forfeited funds to of crimes. In 2017, over 100 bills related to civil Amanda Essex government use other than law enforcement. For asset forfeiture were introduced in all 50 states. 303-856-1369 example, Indiana’s and Missouri’s constitution Many looked to adjust the standard of proof, or allocate all forfeiture proceeds to public education. the degree of evidence necessary for law enforce- Lucia Bragg In the remainder of states, a certain percentage of ment to establish proof that the property seized 202-624-3576 the forfeiture proceeds—ranging from 50 percent is related to a crime in order to win the forfeiture to 100 percent—go back to local law enforce- case. In many states, the standard of proof is a pre- ment. In 2015, Georgia passed a law that restricts ponderance of the evidence. In the last two years, the amount of money an agency or task force can Arizona, Iowa and Virginia enacted laws changing receive to a third of the agency’s annual budget. the government’s burden of proof from a preponderance to clear and convincing evidence, making percent of the forfeited property proceeds and theIt allows remaining the district amount attorney’s must be officeused forto collect indigent 10 itEleven more states—California, difficult to seize property. Connecticut, Iowa, Min- defense, drug treatment, rehabilitation, prevention, nesota, Missouri, Montana, Nevada, New Hamp- substance abuse education, and victim-witness shire, Ohio, Oregon and Vermont—require a crimi- assistance programs.

National Conference of State Legislatures | William T. Pound, Executive Director 7700 East First Place, Denver, Colorado 80230, 303-364-7700 | 444 North Capitol Street, N.W., Suite 515, Washington, D.C. 20001, 202-624-5400 www.ncsl.org | The information contained in this LegisBrief does not necessarily reflect NCSL policy.