OFF THE WIRE
In a big win for property rights and due process, Minnesota Gov. Mark Dayton signed a bill yesterday to curb an abusive—and little known—police practice called civil forfeiture. Unlike criminal forfeiture, under civil forfeiture someone does not have to be convicted of a crime, or even charged with one, to permanently lose his or her cash, car or home.
The newly signed legislation, SF 874, corrects that injustice. Now the government can only take property if it obtains a criminal conviction or its equivalent, like if a property owner pleads guilty to a crime or becomes an informant. The bill also shifts the burden of proof onto the government, where it rightfully belongs. Previously, if owners wanted to get their property back, they had to prove their property was not the instrument or proceeds of the charged drug crime. In other words, owners had to prove a negative in civil court. Being acquitted of the drug charge in criminal court did not matter to the forfeiture case in civil court.
As Lee McGrath, the executive director of the Institute for Justice’s Minnesota chapter, put it, “No one acquitted in criminal court should lose his property in civil court. This change makes Minnesota’s law consistent with the great American presumption that a person and his property are innocent until proven guilty.”
The bill faced stiff opposition from law enforcement and a bottleneck in the legislature. In March, the Star Tribune called it an “outrage” that lawmakers were “dragging their feet on one of the big, common-sense changes” to the state’s forfeiture laws. Ultimately, SF 874 found wide, bipartisan support, passing the state senate 55 to 5 and the state house unanimously. The reforms will go into effect starting August 1, 2014.
They couldn’t come at a better time. It can be very costly to hire an attorney for civil forfeiture cases, so many owners do not. That undermines their chances of retaining or regaining their property. In addition, litigation can actually cost more than what the property itself is actually worth. The average value of forfeited property was around $1,250. Barely four percent of all property forfeited between 2003 and 2010 was valued at more than $5,000. Police have even forfeited a nylon bag worth a mere 22 cents. It’s not too surprising then that more than 95 percent of those charged with a drug crime in Minnesota do not file a civil forfeiture case.
Not only was there an appalling lack of due process for civil forfeiture proceedings, law enforcement can keep up to 90 percent of the proceeds from forfeited property. That clearly creates a perverse incentive to police for profit. A report by the Institute for Justice, “A Stacked Deck: How Minnesota’s Civil Forfeiture Laws Put Citizens’ Property at Risk,” found that forfeiture revenue grew by 75 percent from 2003 to 2010, earning police almost $30 million. In 2012 alone, there were 6,851 property seizures worth a collective $6.7 million, according to the state auditor’s office. This growth occurred despite the fact that the crime rate was actually dropping in the Land of 10,000 Lakes.
The combination of scant legal safeguards for owners and a profit incentive for cops can engender abuses of power. Officers for Minnesota’s Metro Gang Strike Force seized cars, cash, a flat-screen TV and jewelry from people never even charged with a crime. After horrifying reports of police misconduct, the force was dissolved in 2009. A settlement awarded 96 victims $840,000 and returned some of their property. The outrage spurred lawmakers to pass a law requiring forfeiture reporting. The resulting data was later used by IJ in its “Stacked Deck” report. In turn, that research helped catalyze the passage of SF 874.
Before SF 874, only some crimes, like prostitution and drunk driving, required a conviction before the government could forfeit property. Other crimes, like those involving controlled substances, did not. In Minnesota, drug-related forfeitures made up almost half of all forfeitures in 2012. SF 874 now mandates drug charges to have a criminal conviction before property can be forfeited.
Civil forfeiture extends well beyond drug dealers. Wielding bogus links to drug crimes, the federal government has threatened civil forfeiture against innocent property owners. Russ Caswell nearly lost his Massachusetts motel, which the Caswell family had owned since 1955, because the government argued it was “facilitating” drug crimes. As he noted in an op-ed for The Washington Times, “Over a 14-year period, I rented out rooms to almost 200,000 guests. The government only offered as evidence 15 drug arrests. Not 15,000 or 1,500 — just 15. A local paper found big-box stores down the road had more drug activity than my motel.”
In a similar vein, Tony Jalali almost lost his property over $37 worth of marijuana. He did not buy or sell the plant; he was only renting space to a medical marijuana dispensary, which is legal under California law. Neither Caswell nor Jalali were charged with any crime whatsoever. Thanks to the Institute for Justice, both men kept their properties.
To ensure forfeiture reform would prevail in Minnesota, IJ worked with a diverse group of allies, including the ACLU, the Minnesota Criminal Defense Lawyers Association and the Second Chance Coalition. Yet reform should not be limited to Minnesota. Many states are in dire need of similar reform. According to another report by the Institute for Justice, “Policing for Profit,” only three states earned a grade of B or higher for their forfeiture laws. Other states should follow Minnesota’s lead and protect property rights and restore due process.
If you or anyone you know has been a victim of civil forfeiture, please contact the Institute for Justice.
