Can you imagine winning $50,000 at a casino and driving away, happy about your winnings, only to be pulled over and having the large sum of cash seized all the while not being charged with any crime?
That’s what happened to Tan Nguyen in Nevada in a case of civil asset forfeiture that was ultimately contested and overturned in 2014 as an unconstitutional search and seizure.
But most victims of civil asset forfeiture are not so lucky. Usually, the cost of fighting the seizure costs more than the asset is even worth and so the theft goes uncontested.
Under both federal and state law, civil asset forfeiture creates an incentive for law enforcement officials to engage in searches in the hopes of finding something valuable to seize, knowing that that it most likely will not be challenged and recovered.
Now some states are starting to bring an end to the practice.
Governor Pete Ricketts (R-Neb.) for example has just signed LB 1106, legislation that only allows asset forfeiture for certain eligible crimes upon conviction in Nebraska. Meaning, you have to actually be charged with a crime first and convicted before any assets can be seized. And even then, the government has to prove that those assets were connected to the crime that was committed.
Which is a reasonable standard. If the state can prove the money or other asset was linked to crime for which the individual was duly convicted of, then that should be fine. But no more asset seizures without criminal charges.
Some of the crimes that can have an additional penalty of asset forfeiture include collecting gambling debts, drug dealing and human trafficking, among others.
Americans for Limited Government President Rick Manning praised Nebraska for its new approach, saying, “The state of Nebraska has taken a major stand for liberty by eliminating most of their civil asset forfeiture laws. Civil asset forfeiture has become nothing more or less than government-sanctioned theft of private property without due process.”
Perhaps the only question is why the practice has gone on as long as it has. So far besides Nebraska, the Institute for Justice rates that Maine, North Dakota and Vermont — which requires that the forfeiture be connected to a crime — have laws better than most.
Generally state laws could be made better by setting the standard of proof beyond a reasonable doubt, and only in cases where a criminal conviction has occurred.
Most states have not yet acted. Some require criminal convictions, like North Carolina, but then were engaged with “equitable sharing” with federal law enforcement. This is the practice where local officials seize property, give it to the feds under the program, and then receive a substantial amount in return — all to avert state law.
Former Attorney General Eric Holder reportedly ended the “equitable sharing” forfeiture program in Jan. 2015, because, he said at the time, “This new policy will ensure that these authorities can continue to be used to take the profit out of crime and return assets to victims, while safeguarding civil liberties.”
But the new policy was not as far-reaching as advertised. The “equitable sharing” program did not end. According to data compiled by the Institute for Justice, “Only about a quarter — 25.6 percent — of properties seized under equitable sharing were adoptions. The rest resulted from joint task forces or joint investigations exempt from the new rules.”
Guess administrative prohibitions are only as good as the current administrator.
The new Attorney General Loretta Lynch called asset forfeiture “a wonderful tool” in her confirmation hearings and continued the “equitable sharing” program after being confirmed. Then, after appropriations bills were passed later that year, the new Attorney General Loretta Lynch said the program was being suspended in Dec. 2015 due to insufficient funding.
Well, which was it? A violation of civil liberties or a budget shortfall?
Not that it matters. The “equitable sharing” program has once again been renewed in March by the new Attorney General Loretta Lynch with new-found funds to engage. And like most states, the forfeitures do not require a conviction in a court of law.
Is it so much to ask that a crime have been committed before individuals lose their personal property? This should be a no-brainer for state legislatures — and for Congress.