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Some Politicians Want to Stop the Police From Taking Your Stuff

Civil asset forfeiture is the latest arena for bipartisan cooperation on criminal justice reform.
May 27, 2016· 9 MIN READ
Rebecca McCray is a staff writer covering social justice. She is based in New York.

Every evening, Johnny Martinez drives his 26-year-old daughter, Ashley, to her overnight job as a caregiver in Rio Rancho, an hour from their home in Albuquerque, New Mexico. In the morning, he turns his truck around and picks her up again from her shift. In between, Johnny and his wife, Cynthia, care for Ashley’s two children.

“Those four hours in the car are taking a toll on me,” says Johnny, who survives on disability checks he receives for his chronic arthritis. “It’s been stressful.”

The family didn’t always have to rely on a single vehicle. Last December, Albuquerque police seized the car Ashley used to get to work and to take her kids to school. The car was in need of repairs, so she brought it to a gearhead friend because she couldn’t afford to pay a mechanic. After the car was fixed, the two decided to take it for a quick test drive. The friend got behind the wheel.

But her friend didn’t have a valid license, which became clear when two police officers pulled him over. “I didn’t know his license was suspended, and he told the cops that I didn’t know,” Ashley told TakePart. She asked the officers if she could take the car but was told the vehicle was being seized. Her friend was arrested, and Ashley was left alone on the street. Six months later, Albuquerque police still have her car. Ashley was never charged with a crime.

Albuquerque police acted under a practice known as civil asset forfeiture. The federal government and police in 40 states can seize cash and other property they believe might have been used in the furtherance of a crime, even if the property’s owner is never convicted of or even charged with any wrongdoing. These seizures of houses, cars, cash, jewelry, and other property stand out for their peculiar case names, such as Nebraska v. One 1970 2-Door Sedan Rambler and United States v. $124,700 in U.S. Currency. The burden then falls on the owner to demonstrate beyond a reasonable doubt that the property is “innocent,” but the amounts involved are often less than the steep cost of hiring a lawyer to challenge the government, so many who see their property taken this way just give up. In 43 states, law enforcement is entitled to keep half to all of the proceeds gained from seizures it makes. With few, if any, limitations on how the profits are spent, police are incentivized to abuse the practice, critics say.

About five years into joint efforts by Republicans and Democrats in Washington, D.C., and in state capitals across the country to address mass incarceration, civil asset forfeiture is a new arena for bipartisan agreement on criminal justice reform. Lawmakers in 22 states have proposed 50 bills in 2016 to limit asset forfeiture, according to the Center for Public Integrity, and legislation to reform the practice at the federal level was introduced May 19. Although civil liberties advocates have been decrying the practice since the 1990s, it’s Republican lawmakers who today are taking the lead in reforming civil asset forfeiture.

Representative in the House, Darrell Issa, R-Calif. (Photo: Larry Downing/Reuters)

“That a person in most states today can be acquitted of criminal charges in criminal court but still lose his property in civil court is offensive to organizations across the political spectrum,” said Lee McGrath, legislative counsel for the libertarian law firm the Institute for Justice.

“The original intent of these laws was not to seize assets but to take cash and cars insofar as they were related to a crime,” Darrell Issa, a Republican representing California’s 49th Congressional District and a cosponsor of the DUE PROCESS Act of 2016, told TakePart. “This is a worthwhile tool for law enforcement, but we need to fix it so it’s both not abused and the incentives are logical.”

With its roots in British maritime law, civil forfeiture was introduced to the U.S. by Congress in 1789 as a sanction against ships in violation of customs regulations. The law was expanded in 1978 to allow law enforcement to take any money used or gained in relation to the illegal drug trade, and expanded again in 1984 to include property. Its practice grew as the Departments of Justice and Homeland Security encouraged state and county law enforcement to play a larger role in the hunt for suspicious actors and drug traffickers after 9/11.

But according to a Washington Post investigation, half of the more than 61,000 cash seizures under a federal program that involves local and state law enforcement in civil forfeiture were of amounts less than $8,800, indicating it’s more often people like Ashley Martinez who get caught in civil forfeiture’s snare than the drug kingpins the law is intended to target.

Without a way to get to work, Ashley quickly lost her job and was forced to move back in with her parents. As a single mother, she became completely reliant on them while she was unemployed for more than four months before landing the caregiver job.

Civil forfeiture, she says, “took my independence away. I feel horrible—I didn’t want anything like that to happen to my parents.”

Stories like hers are drawing the ire of Fourth and Fifth Amendment proponents across the political spectrum.

Nebraska Gov. Pete Ricketts. (Photo: Facebook)

In Nebraska, Republican Gov. Pete Ricketts signed a bill on April 19 that abolished civil forfeiture in the state. Florida’s Republican governor this year signed legislation requiring proof that assets are related to criminal activity before their forfeiture can be made final. In Virginia, the Republican-dominated legislature and the Democratic governor collaborated this year to require that police have clear and convincing evidence that seized assets are related to criminal activity, and California Republicans and Democrats have joined forces to require prosecutors to obtain a conviction before assets can be permanently forfeited. Ten states now maintain such a requirement, according to the Institute for Justice, up from five just two years ago.

Brad Cates, director of the Office of Asset Forfeiture and Money Laundering at the Department of Justice from 1985 to 1989, is one of many people whose perspective on civil forfeiture has shifted over the years.

“Our views haven’t evolved so much as our understanding of the consequences of this continued march toward the disrespect of the rule of law,” said Cates. “You should be charged and convicted of a crime before your property can be taken, and the exceptions aren’t allowed to eat the rule.”

I’m not a softie on this stuff. But there’s the American way, and there’s cutting corners—we need to properly fund police agencies through the appropriations process and not through a side stream of money.

Brad Cates, former federal prosecutor and former member of the New Mexico House of Representatives

Cates, who was a member of the New Mexico House of Representatives between 1975 and 1982 and has also been a prosecutor, grew increasingly troubled by the way civil asset forfeiture was being used around the country, and he helped write a bill to end the practice in New Mexico.

“I spent most of my public life as a prosecutor,” said Cates. “I want a safe community; I hate criminals; I’m not a softie on this stuff. But there’s the American way, and there’s cutting corners—we need to properly fund police agencies through the appropriations process and not through a side stream of money.”

In Albuquerque, the city budget includes an estimated $500,000 per year from vehicle forfeiture revenue, which effectively pays the salaries of seven city employees. The Washington Post found that about 300 local police departments and 210 task forces have seized “the equivalent of 20 percent or more of their annual budgets since 2008.” Police in Lawrenceville, Georgia, outside Atlanta, this month spent $139,000 from seized assets on four Chevy Tahoes, according to the Atlanta Journal-Constitution.

State and local law enforcement agencies have fought reform efforts, arguing that they rely on that side stream. As a civil asset forfeiture reform bill made its way through the Oklahoma State Legislature this spring, the Oklahoma City Police Department, the Oklahoma Association of Chiefs of Police, and the Oklahoma Sheriffs’ Association lobbied to preserve their right to seize cash and property, arguing the bill would inhibit their ability to combat drug trafficking. “The proposed legislation will encourage cartels and street gangs to increase operations in Oklahoma,” read a letter the Oklahoma Association of Chiefs of Police sent to legislators. “It will result in even more drugs in our communities and even more lives and families being destroyed by them.” But seized assets don’t always go into such programs; McGrath’s organization found that in Philadelphia, not a penny of the money the city acquired through asset forfeiture went to combat drugs or crime in communities.

New Hampshire legislators, in defeating a proposed law that would have tightened evidentiary standards for civil forfeiture in the state, claimed that police would be hampered in fighting the opioid epidemic if the measure were enacted.

But arguments that the money is essential to crime fighting don’t impress Issa.

“Police forces are not underfunded,” he said. “You will always have a lobbying organization saying, ‘We need more, more, more, more.’ There is no limit to the more.”

“Everyone supports forfeiture reform except those who are receiving money from it,” said McGrath.

As many statehouses are stepping back from civil asset forfeiture, the federal government seems ambivalent. The Justice Department’s Equitable Sharing Program allows states to bypass state legislation that limits their ability to seize assets—if they loop in federal agents. The Department suspended equitable sharing in December 2015, then reinstated it in March.

Issa, who chaired the House Committee on Oversight and Government Reform from 2011 to 2015 and now serves on the House Judiciary Committee, is pushing to close the loophole for good. Under the DUE PROCESS Act he and 12 colleagues introduced May 19, the federal government would have to prove a connection between the property and a crime and that the owner “intentionally used, knowingly consented, or reasonably should have known that the property was being used in connection with the offense,” according to a statement. The act would also reduce the amount of time that the government has to notify owners of a seizure; give property owners more time to respond to a seizure; speed property returns; establish a right to counsel and allow for the recovery of attorney’s fees; and allow a magistrate judge to return property immediately if the seizure was handled illegally.

Oklahoma Gov. Mary Fallin. (Photo: Win McNamee/Getty Images)

“The idea that you’d be able to use the federal government to [seize assets] when your state doesn’t want you to is wrong,” said Issa.

Advocates like Holly Harris, executive director of the U.S. Justice Action Network, are concerned the bill, introduced by Jim Sensenbrenner, R-Wisc., doesn’t go far enough. “We still have concerns about the equitable sharing loophole,” said Harris. “Innocent owners still have to navigate this laborious process, and the direct profit incentive remains. It’s going to be a tough fight at the federal level because you’re talking about the federal government’s bottom line.”

Still, she sees it as yet another signal that the issue won’t leave the spotlight anytime soon.

“This movement is just beginning, and civil asset forfeiture reform legislation is going to come back year after year, and the drumbeat will just get louder,” said Harris. “Ultimately, Congress will have to act.”

Law enforcement groups in Oklahoma largely succeeded in whittling down reform; the most far-reaching bill, sponsored by Republican Sen. Kyle Loveless, failed to move forward this session. In late April Gov. Mary Fallin signed a more moderate bill, which permits judges to award attorney fees to people whose property has been seized. That could encourage more people to take their forfeiture cases to court, says McGrath: “One of the reasons law enforcement like civil forfeiture is that the property owner does not have a right to an attorney.”

Even in states that have seen reform, the practice can continue. Ashley Martinez wouldn’t have had her car taken away if Albuquerque police had stuck to the intent of New Mexico lawmakers. In March 2015, the state enacted one of the strictest civil asset forfeiture reform laws in the country with sweeping bipartisan support. It was heralded by advocates as the best state-level civil forfeiture fix in the country, yet police across New Mexico continue to seize the belongings of residents without first obtaining a criminal conviction, according to a lawsuit filed in November. Two state senators—Republican Lisa Torraco and Democrat Daniel Ivey-Soto—sued the city of Albuquerque in an effort to force authorities to abide by the law. (Torraco’s criminal defense practice represents the Martinez family.)

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“[New Mexico’s] law is the gold standard of civil forfeiture reform—this is the best it’s going to get,” said Torraco. “The city just doesn’t want to give up the income.”

The Albuquerque Police Department declined to comment on the lawsuit or the Martinez case, referring inquiries to the city of Albuquerque, which did not respond to repeated requests for comment.

Though the lawsuit targets Albuquerque, Torraco says the practice also continues in Santa Fe and Las Cruces, among other cities. She and Ivey-Soto believe a win in Albuquerque will motivate other cities to fall in line. In response to the complaint, the city of Albuquerque has defended its forfeiture program as essential for keeping repeat DUI offenders off the roads.

On May 19, the parties appeared before Second Judicial District Judge Clay Campbell for a hearing. To Torraco’s disappointment, the judge decided the senators lacked legal standing to bring the case because they weren’t directly affected by the forfeiture program. Torraco and Ivey-Soto have 30 days to appeal the ruling.

Meanwhile, the Martinez family is still without its car. It paid $50 to speak to the city attorney in December after the car was seized, but according to Johnny, that meeting wound up being an opportunity for the city attorney to convince the family to try to sign papers to formally turn over the car and give up the fight.

“They sent us all kind of ridiculous paperwork and said they’d set up a hearing,” Johnny says. “It’s been since Dec. 17—there was no hearing, no nothing. We’re still waiting.”

CORRECTION: May 31, 2016

Because of an editing error, an earlier published version of this article stated that Rep. Jim Sensenbrenner is from California.