A move toward criminal forfeiture

Published 7:03 pm Monday, July 8, 2019

Civil asset forfeiture allows the government to confiscate property on the grounds that it is connected to a crime — without ever convicting someone of the crime. In court, a lower burden of proof applies in these civil cases than in criminal cases, even when valuable property such as the vehicle you drive to work is at stake.

Proponents of civil asset forfeiture will argue that such a practice is needed to keep illegal drugs out of Mississippi. That this is the best tool to stop drug mules from crossing Interstates 10 and 20 and reaching your neighborhood. But that argument quickly falls apart when you look at the latest data about the reality of how the practice is used both here in Mississippi and in the nation’s largest civil forfeiture program.

A review of the first 18 months of the state’s civil forfeiture database shows Mississippi law enforcement isn’t necessarily busting drug kingpins, but more likely collecting cash, an iPhone, or a vehicle if a person is in possession of an illegal substance.

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The value of the 315 seizures in the database averaged $7,490 per seizure. When a single high-dollar forfeiture is removed from consideration, that average value drops to $5,422. Less than 10 seizures statewide amounted to more than $60,000.

The vast majority of seizures were for $5,000 or less and fully one-third were for less than $1,000. In two instances, law enforcement seized just $50 in cash. Since attorneys’ fees and court costs quickly add up to more than those amounts, many people don’t even try to contest a low-dollar forfeiture.

A newly released nationwide study also reveals that civil forfeiture fails to fight crime. The non-profit Institute for Justice published a study looking at the nation’s largest forfeiture program: the federal equitable sharing program. This is the Department of Justice program that allows local law enforcement to cooperate on forfeiture with DOJ agencies and receive up to 80 percent of the proceeds.

The study combines more than a decade’s worth of data from the equitable sharing program, with local crime, drug use and economic data from a variety of federal sources. It found that increased forfeiture proceeds did not help police solve crimes or reduce drug abuse. However, increases in forfeiture proceeds were strongly related to economic hardship. When local unemployment rose by 1 percentage point, forfeiture increased by 9 percentage points.

Many on the right and left have seen how this practice is unfair, and not in line with our principles. That is why there has been push back at the state level, and even from the U.S. Supreme Court in limiting this practice.

Since 2014, 31 states, including Mississippi, have reformed their civil forfeiture laws. In 2017, the state brought a transparency requirement to civil forfeiture and last year the legislature let the provision of administrative forfeiture die.

Other states have gone further. Seventeen states require a criminal conviction to forfeit most or all types of property. And three states – North Carolina, New Mexico, and Nebraska – have abolished civil forfeiture entirely. What does this look like?

New Mexico enacted sweeping reforms in 2015 abolishing civil forfeiture and replacing it with criminal forfeiture. To forfeit property, the government must convict the owner of a crime and tie that property to the crime with clear and convincing evidence in criminal court. This shifts the burden from the individual to the government, by requiring evidence that the person had knowledge of the crime giving rise to the forfeiture. And finally, all forfeiture proceeds must be deposited into the state’s general fund, eliminating the profit incentive that can distort law enforcement priorities.

Civil asset forfeiture violates fundamental property and due-process rights. If someone has been found guilty of selling or trafficking drugs, their property should be forfeited. But it should take a criminal conviction. That is the national mood, and movement.

States like North Carolina, New Mexico, and Nebraska have not become havens for drug dealers or seen spikes in crime. And again, the latest evidence shows that there is not a relationship between increasing forfeiture and decreasing crime and drug abuse. The choice between civil asset forfeiture and fighting crime is a false dichotomy. We know we can support law enforcement, safeguard our communities, and also protect the constitutional rights of all Mississippians.

Brett Kittredge is the Director of Marketing and Communications for Mississippi Center for Public Policy, the state’s non-partisan, free-market think tank.