Nine Guidelines For Civil Asset Forfeiture Reform

John Malcom, in testimony before the Mississippi Asset Forfeiture Transparency Task Force:

Recently, The Heritage Foundation’s Meese Center released Arresting Your Property, a detailed report on civil asset forfeiture.[82] In it, we propose nine common-sense measures, some of which may be pertinent to and suitable for your purposes, that are intended to serve as guiding principles of forfeiture reform:

1. Restore legislative control of forfeiture proceeds by redirecting them to the General Fund. Law enforcement should not be a profit center. Lawmakers should bar law enforcement agencies from retaining the forfeiture funds they generate and mandate that these proceeds go instead to a jurisdiction’s General Fund.
2. Eliminate equitable sharing. The federal government should not be encouraging state and local law enforcement to bypass state and local laws. Equitable Sharing hampers state efforts to protect innocent property owners and reinforces the profit motives at the core of forfeiture abuse. Internal Justice Department policy changes are insufficient; the program should be abolished. Until then, states should consider policy reforms that disallow their law enforcement agencies from bypassing their own laws.
3. Raise the burden of proof. The government should be required to demonstrate that property is subject to forfeiture by “clear and convincing evidence,” a standard significantly higher than the current “preponderance of the evidence.”
4. Reaffirm the presumption of innocence. Property owners should not have to disprove the government’s case; rather, the burden should be on prosecutors to demonstrate that owners knew their property was being used in the commission of a crime.
5. Ban “bartering.” Property owners should not be pressured into waiving their rights on the side of a road or in the heat of the moment. All law enforcement agents should be barred from “bartering”—offering to let property owners go if they sign away their property on the spot.
6. Provide for indigent defense. Forfeiture is a highly complex system that most citizens are ill-prepared to face alone. Because of its quasi-criminal nature, claimants who cannot afford counsel should be able to petition a court for the appointment of counsel at the government’s expense, and victorious property owners who retained counsel should be afforded a chance to recoup their attorney’s fees.
7. Protect property owners’ rights in administrative forfeitures. Most federal civil forfeiture cases begin and end in the bowels of a federal agency. Agencies should be required to reform their internal procedures to make the process fairer and more transparent, clearly advising potential claimants about their rights to contest a seizure and to legal representation. Property owners should also be afforded the right to a prompt pre-seizure or immediate post-seizure hearing before a judge.
8. Ensure transparency through reporting requirements. Law enforcement agencies involved in civil forfeiture cases should be required to record the details of their seizures and forfeitures. These reports should specify what was seized, the amount or value of the seized goods, the alleged criminal conduct giving rise to the forfeiture, whether anyone was ever arrested for, or convicted of, said criminal conduct, whether the forfeiture action was challenged, the final disposition of the property or currency, and how forfeiture funds have been spent.
9. Provide for review of forfeiture settlements. Given the complexity of forfeiture law and the tremendous pressure that property owners face to settle forfeiture cases (sometimes because they are threatened with criminal charges if they continue to contest the forfeiture), in cases in which a claimant is not represented by counsel, any proposed settlement should be reviewed by a neutral third party, preferably a judge.

These reforms have been endorsed by 15 bipartisan national organizations, from the American Civil Liberties Union to the Institute for Justice.