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Civil Asset Forfeiture Has Been Eliminated in the Cornhusker State
In a boon to innocent property owners in the Cornhusker State, Nebraska has become the tenth state in the country to require a criminal conviction in all or most cases before law enforcement agencies may perfect a forfeiture proceeding.
Asset forfeiture is the process by which law enforcement agencies can seize and keep property suspected of being involved in criminal activity. While purported to be a crime-fighting tool, the process has blossomed beyond this original purpose, whereby even innocent property owners—who oftentimes aren’t even charged with a crime—have been ensnared into a net cast too wide. As a result, modern civil forfeiture has become a multi-billion dollar windfall for law enforcement agencies nationwide in the past several decades, who have overleveraged themselves on a practice at odds with constitutional liberties.
From Forbes:
Nebraska Gov. Pete Ricketts signed a bill on Tuesday that eliminates civil forfeiture, which allows law enforcement to seize and keep property without filing charges or securing criminal convictions. The bill, LB 1106, passed the unicameral legislature last week by a vote of 38 to 8.
…Nebraska joins just nine other states that require a criminal conviction as a prerequisite for most or all forfeiture cases. Following North Carolina and New Mexico, Nebraska is now the third state largely without civil forfeiture.
Nebraska’s steps to protect innocent property owners this week is especially significant in that they’ve also curbed the ability of local and state authorities to circumvent more restrictive state law in favor of the federal government’s comparatively lax equitable sharing standards—something that most other states that have passed conviction requirements have nonetheless come up short on recently. To curtail this practice, LB 1106 now prohibits the transfer or referral of assets to federal authorities unless the value exceeds $25,000, the assets are seized by a federal agent themselves, and the individual from whom the assets are seized is subject to federal prosecution.
A provision banning law enforcement agencies from also entering into agreements with federal authorities to conduct forfeiture litigation was wisely added as an amendment to LB 1106, providing further instruction under law that forfeitures occurring in Nebraska are to be adjudicated on Nebraska’s terms.
In addition to a new conviction requirement, LB 1106 also requires both law enforcement and prosecuting attorneys to file written reports of seized property to the Auditor of Public Accounts—including information on what types of property were seized, what their value is, what crime is alleged, and the disposition of the property seized through the forfeiture process. Obtaining such information has traditionally been a difficult hurdle to clear in other states seeking reform, who frequently have little to no current information as to the pervasiveness of forfeiture proceedings, and thereby can’t provide transparency and accountability to the public.
Nebraska’s move this week on civil forfeiture–hot on the heels of Florida’s recent reforms–is a strong signal to other states of the importance of maintaining the integrity of its citizen’s property rights and, just as importantly, realigns law enforcement priorities towards the original stated purpose of forfeiture: that it be used to fight criminal activity, proven as such through the dictates of due process and the rule of law.
Published in Law, Policing
Good news. Thanks for the detailed report.
Do you have a list of the other 8 states in addition to Nebraska and Florida? (Maybe it’s in the Forbes article, but Forbes doesn’t like me.)
Unfortunately I can only claim to be a former Nebraskan. But our family considered our Nebraska years to be about the best.
@The Reticulator:
The other states are Nevada, New Mexico, California (when assets in question are valued less than $25K), Minnesota, Oregon, New York (for most non-drug related forfeitures), North Carolina, Montana, and Wyoming.
Florida, while significantly reforming their system–for instance, requiring an arrest before allowing property to be initially seized–actually still allows for forfeitures without a conviction in the underlying criminal offense. I surmise it won’t be long before they go the distance with a conviction requirement.
The one thing I can remember disagreeing with Sen. Jeff Sessions on was his support of this stuff. Wrote him by snail mail years ago, and he basically said “I know you’re concerned, but sorry, it stays. It works.”
By this do you mean the forfeiture only becomes irreversible upon conviction? If so, what policies are in place to return forfeited property upon failure to obtain a conviction either at or before trial? Do the aggrieved still have to waste more of their property to pry what was taken from the grasping hands of government?
Given the amount of money made by law enforcement on civil forfeiture, was there a particular case of abuse that motivated the change? Was there a particular official who made this a pet issue?
It always piques my curiosity when the government does the right thing.
I am so glad I live in Montana because every time something of this nature comes to my attention, I find that MT is on the right side of justice.
Thanks. Again.
Do you happen to know if there is a go-to site where one can keep track of the status of what’s happening with this in the other states? In particular, I’m wondering about my current home state of Michigan. It would be something to be asking candidates about in the upcoming election season.
@The King Prawn:
As to your first question: It depends. In some states, a conviction in an underlying criminal case then allows the state to levy a proceeding against the property itself. In other states, cases against the person and the property occur simultaneously. As to the second and third question: Again, it depends. Some states have stronger policies in place, in which in rem proceedings immedately relinquish state interest in the property, while in other states, the process is fraught with difficulties.
@Quinn the Eskimo: As far as Nebraska is concerned, I’m not sure. So many states have had their own unique stories of forfeiture abuse over the years that it’s difficult to keep track of them all (Texas agencies, where I’m based, have been notorious abusers along major highways in recent years). May just be that they’re riding the wave of reform across the country. Not sure of any champion of reform in particular, either.
@Kay of MT: Montana has indeed been a trendsetter, but they’re not finished yet. Y’alls legislature didn’t sew up the equitable sharing work-around when they eliminated state-based forfeitures, so state/local authorities can still transfer cases to the feds, who then kick back 80% of the proceeds. Ample evidence has shown that when reform is passed, state or local agencies will nonetheless utilize the more permissive federal system when they legally can.
Hopefully, that will be remedied soon.
@The Reticulator:
Glad you ask about Michigan. In the most recent legislative session, your legislature passed a fairly substantial package of reform bills, which I wrote about here: http://rightoncrime.com/2015/10/with-gov-snyders-signature-forfeiture-reform-comes-to-the-wolverine-state/
None of them require a conviction, but with the sunlight bills, you’ll finally get a more accurate picture as to the extent of the practice–which is next to impossible in many states. Once we know just how often law enforcement is dipping their beak in civil forfeiture, it will be easier to craft a path forward for a total ban.
As far as a single repository of information regarding state-based reforms, IJ’s website is invaluable (IJ.org) for learning about forfeiture laws state-by-state. Also, I’d be remiss if I didn’t plug rightoncrime.com, as we commentate on bills as they get signed nationwide.
Seizing property without a conviction seems odd to me. Statutes have long allowed for incarceration as well as a fine after a conviction. It is interesting that the IRS can seize assets as well as real property before any tax fraud case is resolved.
Unless the law has changed I believe that if a federal judge determines a defendants attempt to regain their property is considered frivolous another 5 years of incarceration can be added to a defendants sentence.
Summary execution works even better. Wonder why the squish won’t go the full Monty? Must be soft on crime I guess.
FWIW, seizure doesn’t concern me that much. It’s appropriate to seize or freeze assets under many circumstances – evidence, ill gotten gains, potential restitution that could be easily liquidated, means to flee prosecution, etc.. Yes, it can be used as a prejudicial punishment, but law enforcement has a financial disincentive to seize assets. They become a burden until they are either returned or forfeited.
Forfeiture is a different matter. They can seize the assets knowing they won’t be returned. They’re sold quickly and law enforcement agencies pocket the cash. It’s become a speed trap on steroids, but with much greater consequences for people caught in the trap.
The abuse of racketeering and civil forfeiture laws are textbook examples of why slippery slope arguments, even if suspect, can’t be completely ignored.
Especially when somebody like Obama promises to slide down that slope as far as he possibly can. Except I think the actual phrase is something like “interpret the law as broadly as possible.”
Thanks. I see that it passed the house by a 107 to 2 margin, and passed in the Senate by a unanimous vote. That means it should be a piece of cake to take the next step, right?
One thing that’s not so good was that Gov. Snyder said this bill struck a fair balance between private property rights and law enforcement’s ability to do its job. A wiser politician would have set that this bill was an important step towards striking such a balance.
Didn’t SCOTUS recently rule on a case (and possibly unanimously) that seizing assets before trial deprived accused of the means to secure their choice of legal representation?
The saddest part of this is that it has to be done. Time and time again we give those in government broad powers to do their jobs. Relying in good faith on their ethics, their morals, their sense of right and wrong, only to find that many in positions of authority lack even the slightest evidence of those qualities. That the broad tools we give them to assist in their tasks are readily, eagerly even, turned to shakedown those they are supposed to protect.
@BrentB67:
Yes, on the grounds that freezing such assets violated an individual’s 6th Amendment right to secure counsel of their choice. It wasn’t a unanimous decision, though (5-3).