How can forfeiture laws be reformed to add protections?

Reforming Forfeiture Laws to Add Protections

Civil asset forfeiture laws allow law enforcement to seize assets, like cash or cars, that they suspect are connected to criminal activity. The property owner doesn’t need to be convicted or even charged with a crime for their assets to be taken. That means innocent people can have their property taken away without due process. There are some good arguments for why asset forfeiture can be a useful law enforcement tool. But there are also a lot of problems with how these laws currently work that open the door to abuse and hurting innocent people. Here’s an overview of how reforming forfeiture laws could help add more protections.

The Problem with Civil Asset Forfeiture Today

There are a few core problems that make today’s civil asset forfeiture laws ripe for abuse:

• Low legal standards – Police only need probable cause to seize assets, a much lower bar than the beyond reasonable doubt needed for criminal convictions.
• Perverse incentives – Law enforcement agencies often get to keep seized assets, which incentivizes taking as much property as possible.
• Burden on owners – Owners have to prove their innocence to get their property back, flipping the burden of proof.
• Limited protections – There are limited options for owners to fight back, like needing to post bond equal to 10% of the assets value.

This combination means police have a strong incentive to take property, while owners have limited ability to fight back. Studies have found many examples of abuse, like police disproportionately targeting low-income and minority communities. There are cases of police seizing tens of thousands of dollars from people without filing any criminal charges. The current laws fail to include enough protections for property owners.

Key Areas for Reform

There are a few key areas where reforms could help fix problems with civil forfeiture and add protections:

Raising the Legal Standard

One of the biggest issues is the low legal bar police need to seize assets. Requiring law enforcement to meet the higher clear and convincing evidence standard, not just probable cause, would make it harder to take property without strong proof it’s connected to a crime.

Removing Perverse Incentives

Having agencies get to keep seized assets encourages taking as much property as possible. Reforms could redirect forfeited assets to neutral funds, like education, drug treatment or crime victims programs, not police budgets. This removes the incentive to seize property for financial gain.

Shifting the Burden of Proof

Owners having to prove their innocence to get assets back is at odds with the American justice system. Reforms could shift the burden onto the government, requiring prosecutors to show clear evidence against the owner as part of pursuing forfeiture.

More Options to Fight Back

Making it easier for owners to challenge seizures, like eliminating bond requirements, appointing public defenders, and allowing class action lawsuits, would make it less burdensome for innocent owners to fight back.

Increased Transparency

Adding reporting requirements, like making forfeiture activity public data, can increase transparency around how these laws are used. This allows better oversight to identify abuse.

Curbing Potential Abuses

There are also reforms that could curb specific abusive practices under forfeiture laws:

• Banning roadside waivers that coerce people into surrendering assets on the spot without due process.
• Preventing forfeiture of primary residences where owners are often innocent, like with crimes by family members.
• Exempting forfeiture of vehicles for minor offenses that unduly impact livelihoods.
• Requiring conviction before property can be forfeited in criminal proceedings.

Smaller procedural reforms like this can help limit some of the most damaging practices.

The Path Forward

There is growing bipartisan support for forfeiture reform. Several states, like New Mexico and Nebraska, have passed legislation implementing many of these changes. But there is still work to be done at both the state and federal level. The key is crafting balanced reforms that preserve forfeiture as a tool for fighting crime, while closing loopholes that currently hurt innocent property owners. The reforms discussed here aim to strike that balance. Proper implementation could significantly strengthen due process and property rights protections under civil forfeiture laws.

Sources:

• Institute for Justice Report on Forfeiture Abuse
• Prison Policy Initiative Analysis
• ACLU Overview of Forfeiture Reform
• Heritage Foundation Forfeiture Reform Recommendations