Outrage over Forfeiture Reform Is Unjustified

Any time government agencies are given an explicit profit motive to run roughshod over the rights of individuals, abuses will happen.
July 24, 2015 • Commentary
This article appeared in Oklahoman on July 24, 2015.

“The most damning, most asinine and devastating bill I have ever seen.” That’s how Canadian County Sheriff Randall Edwards described State Senator Kyle Loveless’s new bill that would reform certain police practices.

Considering some of the legislative proposals that get thrown around capitol buildings every year, that’s quite a statement. What must Sen. Loveless have done to provoke it?

Actually, all the “Personal Asset Protection Act” does is give individuals a fighting chance when the government attempts to take their property through a process called civil asset forfeiture.

Civil forfeiture is a procedure the government uses to seize and ultimately take title to private property, even when its owner is not convicted of or even charged with a crime. It has been used by federal and state governments to seize billions of dollars worth of cash and property from individuals over the past several years amid a flood of allegations of abuse. Loveless’s bill would reform Oklahoma forfeiture laws to provide better protections for innocent people and their property.

The bill would require a conviction before certain property can be forfeited, require that forfeited proceeds be placed in the state general fund rather than in the seizing agency’s budget, and raise the burden of proof for proving property is subject to forfeiture from “a preponderance of the evidence” to “clear and convincing evidence.”

The state of New Mexico, with unanimous bipartisan support, recently abolished civil forfeiture outright, meaning that forfeitures in New Mexico now require a criminal conviction. The Oklahoma bill doesn’t go so far: it only applies to seizures under the state controlled substances act and still allows civil forfeitures through state‐​federal taskforces.

Despite the relative modesty of the reform, the response from Oklahoma law enforcement has ranged from hostile to apoplectic.

In addition to Sheriff Edwards’ hyperbolic comments, District Attorney Greg Mashburn, who sits on the Oklahoma State Bureau of Narcotics and Dangerous Drugs, insists that the “scary stories” being told by opponents of forfeiture are “just not accurate.”

But a troubling picture is emerging as more scrutiny is applied to Oklahoma forfeiture. A state commission last week heard testimony citing audits of Oklahoma district attorney offices which revealed that officials in Oklahoma have used forfeiture funds for such vital public expenditures as making payments on a prosecutor’s student loans and allowing another district attorney to live rent‐​free for years in a seized home. Other audits reviewed by Oklahoma Watch revealed that several firearms, vehicles, and monetary seizures have gone missing over the past few years alone.

This isn’t just an Oklahoma problem. Police around the country have used civil forfeiture to take cars, homes, boats, and even entire businesses such as motels from their owners on the flimsiest of suspicions, such as a motel guest using a room to conduct drug transactions without the knowledge of the owner. The IRS has used civil forfeiture to seize the entire bank accounts of small businesses based simply on federal agents’ belief that the owners’ deposits were suspicious. The DEA has on several occasions stranded travelers by seizing all of their money simply because they were traveling to known drug “hot spots” such as Los Angeles while carrying cash.

Shouldn’t the government have to prove you’re a criminal before it takes your cash, your car, your home, or your entire business?

Any time government agencies are given an explicit profit motive to run roughshod over the rights of individuals, abuses will happen. That is precisely why American legal principles demand that these powers be separated, checked, and balanced between different branches of government.

Setting law enforcement budgets and priorities through the “power of the purse” is a core legislative responsibility. When law enforcement agencies self‐​finance by taking property directly from citizens and using the proceeds to pad their budgets, that responsibility has been abrogated.

Sheriff Edwards insists that the ability to take money and property without convicting anyone is necessary for his department to afford the “cars, radars, cameras and a multitude of other public safety equipment” it needs.

Of course Canadian County, Oklahoma should be able to properly equip its police. But county law enforcement should have to make the case for that equipment to the appropriate and accountable legislative bodies, not simply take the money out of the trunk of someone’s car on the side of the highway and deposit it in the department account without so much as a criminal charge against the owner.

Loveless’s bill would not “devastate” law enforcement; it would help restore a proper balance of powers between the branches and protect innocent people from government abuse. What’s so asinine about that?

About the Author
Adam Bates
Former Policy Analyst, Cato’s Project on Criminal Justice