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Civil asset forfeiture and federal equitable sharing

Professors study practice that requires no criminal conviction

BOONE—Innocent until proven guilty carries a lot of weight if you are accused of a crime. But it can be a different story when state agencies seize the property or assets of those suspected of criminal activity. A procedure known as civil asset forfeiture allows law enforcement agencies in many states to seize property or assets of a criminal suspect and proceed to have them forfeited to the government even if the individual is never convicted of the original charge.

Recent research by Drs. Jeff Holcomb and Marian Williams, both professors in Appalachian State University’s Department of Government and Justice Studies, and Tomislav V. Kovandzic from the University of Texas-Dallas on civil asset forfeiture, has been widely cited in the media. It has also been discussed at length in a legal brief to the United States Supreme Court in the case Florida v. Harris which deals with the requirements of determining probable cause for police searches.

State laws regarding asset forfeiture differ. “Very few states require that an individual be convicted of a crime to lose their property,” Holcomb said. “Law enforcement agencies in states with no civil asset forfeiture laws or very restrictive ones, however, can circumvent those laws by going through the federal law called equitable sharing.”

Equitable sharing allows state and local law enforcement agencies to use federal forfeiture laws and share the proceeds from these assets with federal agencies. And the amount of money is staggering. In 2011, the federal government returned more than $400 million to state and local agencies through equitable sharing forfeiture proceedings alone.

“Our task was to analyze the extent of civil asset forfeiture, in particular the use of equitable sharing, and whether different state laws were associated with how the police choose to process forfeiture cases,” Williams said. They found that law enforcement agencies in states with restrictive forfeiture laws were more likely to use federal equitable sharing.

According to Holcomb, it is an understandable choice. “Law enforcement agencies appear to be using equitable sharing to maximize the amount of money and assets that they are able to keep – even if state law would not allow it,” he said. “That is why some have referred to civil asset forfeiture laws as encouraging ‘policing for profit.’ There is a real concern that some police decisions are being driven, at least partially, by the financial rewards for these agencies to seize suspects’ assets.”

Furthermore, “in some states, the burden is on the individual to provide evidence that their property is ‘innocent,’ which is opposite of traditional criminal justice cases where the burden is always on the state to prove an individual guilty of a crime,” Williams added.

Holcomb, who is a former probation and parole officer, is interested in the balance between individual rights and the legitimate goals of protecting the community, holding offenders accountable, and minimizing the profits of criminal activity. “The easier you make it to search a person’s property, the easier it is for the state to seize and forfeit assets,” he explained. “The interesting part about civil asset forfeiture is that even if the state drops charges against an individual, a civil proceeding allows their property to be seized and forfeited. You do not have to be convicted of any crime to lose your property in these types of cases.”

Oftentimes, state laws do specify how cash or proceeds from the sale of property seized from those convicted of crimes are to be used. In some states, the money supports public school drug education programs or victim restitution funds or goes into a state’s general fund. Assets forfeited through equitable sharing, however, must be used for law enforcement purposes, even if state laws require such assets to be used for other purposes.

According to Holcomb, that is one of the reasons that equitable sharing is so appealing for local and state agencies. “Essentially, it allows police in many states to more easily prevail in forfeiting assets and to keep all of the proceeds themselves – something their own state laws may not allow,” he said. “It is a completely rational decision, though it does raise concerns.”

While civil asset forfeiture has its advocates, misuse can occur. Such was the case in Camden County, Ga., when a sheriff used assets from property seized over the years to purchase a sports car, a boat and gas for employees’ personal vehicles, as well as establish a scholarship in his name at his alma mater. An Internet search finds other instances where individuals who were not arrested or convicted of a crime had their property, such as vehicles, cash or other belongings, seized by law enforcement agencies. It was such a case that led noted columnist George Will to criticize such laws in a recent column in which he referred to the initial report by Williams, Holcomb and Kovandzic.

“Groups on both sides of the political spectrum have raised concerns about asset forfeiture for different reasons,” Holcomb said. “Many conservative and libertarian groups are very protective of individual property rights and view civil forfeiture as a real threat to property rights, similar to imminent domain laws. Liberal groups consider forfeiture as another example of intrusive state power. Furthermore, allowing law enforcement agencies to generate their own resources from taking individual property is viewed as a threat to civilian control over police agency operations and budgets.

“The fact you have groups from widely different political perspectives complaining about this practice shows it’s not a purely ideological issue,” Holcomb said.

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