Criminal Justice

Reform Asset Forfeiture to Protect Property Rights

February 1, 2016

Trent England

The state and federal constitutions protect a person’s right to his or her property. On the other hand, a person has no right to the proceeds of illegal activities. Unfortunately, a legal innovation known as “civil asset forfeiture” can let the exception trump the constitutional rule.

In the 1980s, police and prosecutors began to focus on seizing the proceeds of criminal activities in an attempt to hobble major criminal enterprises. While these efforts may not have curtailed organized crime or drug cartels, they did generate a new revenue stream for some law enforcement agencies. Forfeiture funds also came with less legislative oversight. Use of asset forfeiture gradually expanded far beyond the original purposes.

Today in Oklahoma, the average forfeiture of cash is about $1,200. This means many forfeitures are of even smaller sums of money. The iconic image of police discovering and seizing bricks of hundred-dollar bills hidden in a drug trafficker’s car is the exception rather than the rule. District attorneys can also take homes, cars, or any other property they claim is connected to criminal activity.

The most troubling aspect of civil asset forfeiture is that, while it rests on the proposition that a crime has occurred, property can be taken without a criminal conviction. In fact, some Oklahoma district attorneys routinely take cash and other property without even charging anyone with a crime. Current Oklahoma law allows government to take a person’s property using a simple civil court procedure and the lowest possible burden of proof.

Finally, recordkeeping and accountability for seized cash and other property is haphazard. Media reports based on audits of county district attorney offices show seized funds have been spent to pay an assistant district attorney’s student loans and that another assistant district attorney lived rent-free in a seized home for five years.

States from Pennsylvania to California have recently taken up proposals to reform civil asset forfeiture to protect the rights of citizens. Michigan has increased the burden of proof required to seize property and improved transparency. Earlier this year, New Mexico eliminated civil asset forfeiture altogether; the state will now require a criminal conviction in order to seize property. Oklahoma should join with these other states and rein in the expansion of government power through civil asset forfeiture.

Forfeiting property should require a criminal conviction, or at least a higher burden of proof than the current “preponderance of the evidence” standard. Property that is forfeited should not go directly to the agency that initiated the action, which creates an incentive that can distort law enforcement priorities. Every forfeiture action should be fully documented. These simple reforms would allow law enforcement to confiscate the property of those who are guilty while protecting the property rights of innocent Oklahomans.

Trent England (J.D., George Mason University) is vice president for strategic initiatives at OCPA, where he also serves as the David and Ann Brown Distinguished Fellow for the Advancement of Liberty. A former legal policy analyst at The Heritage Foundation, England has contributed to two books, The Heritage Guide to the Constitution and One Nation under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. His writings have appeared in The Wall Street Journal, the Christian Science Monitor, and numerous other publications.