J. Pepper Bryars: While the Supreme Court deliberates, Alabama should shine the light on asset forfeiture
The U.S. Supreme Court recently signaled that it’s ready to limit the government’s power to confiscate things like cars, houses, and cash that prosecutors have proven, or maybe just reasonably suspect, were involved in crimes. The court heard oral arguments related to Indiana’s use of the power, known as asset forfeiture, to confiscate a $42,000 vehicle — a value nearly four times the maximum fine for the underlying crime. Specifically, the court is looking at whether the state is subject to the Eighth Amendment’s ban on imposing excessive fines. But because the justices seemed so skeptical of asset forfeiture overall, some court watchers predict that while the impending ruling may not abolish the practice completely, it could have deep and wide-ranging impacts. Including here in Alabama. Our state’s asset forfeiture law has become increasingly controversial because it allows something called civil asset forfeiture, a maneuver in which law enforcement agencies legally seize assets based upon the mere suspicion of a crime. Yes, you read that right. Under state law, you don’t have to be charged or even convicted of a crime to have your property seized. Originally intended to cut off the cash flow of drug cartels, civil asset forfeiture is a practice that is independent of personal guilt or innocence. Instead, police charge or suspect your assets of being involved in a crime, and then take them. Civil asset forfeiture flips the innocent-until-proven-guilty mantra of the American judicial system because defendants must prove their innocence to get their property back. In the case that defendants decide to hire an attorney, the legal costs can rival the worth of the assets, making such attempts both prohibitively expensive and, at times, pointless. A coalition including the Alabama Policy Institute, the Heritage Foundation, and the Institute for Justice supported efforts to reform the law during the last legislative session. But as negotiations in Montgomery waded into the details and potential unintended consequences arose, time ran out and the bill failed. Why? “It’s a complicated issue,” explained the bill’s sponsor, Sen. Arthur Orr, R-Decatur, in an Al.com postmortem of the effort. Part of that complication lies in the delicate balance between liberty and order, and how much we’re willing to cede one for the other. That’s an age-old question and one that’s not easily resolved. Proponents of asset forfeiture contend it’s an effective tool for law enforcement and helps keep drug dealers off the streets. Critics believe it goes too far and might even create a perverse financial incentive for police departments to take property from those who cannot defend themselves in court. Both sides have valid points. Another complication lies in the inability to know exactly how asset forfeiture is being conducted in Alabama. Law enforcement officials say they process forfeitures ethically, while some critics believe it’s a shadowy and unaccountable practice. That, however, should be the simplest complication to settle. The recent reform bill called for the creation and maintenance of a publicly accessible database containing relevant asset forfeiture information – what agencies were involved, what assets were seized, their value, the existence of any underlying crimes, etc. Such transparency would not only build trust in the process, it would give both sides a common set of facts to discuss rather than rumors and disputed anecdotes. Still, opponents of a database point to the fact that asset forfeiture cases are already public record since they’re all handled in one of Alabama’s 41 circuit courts. That’s true, but that’s like telling concerned citizens to look for a needle in a haystack … or 41 haystacks, actually. We should expect more from our government when private property is being seized. Another objection is, of course, the cost of maintaining such a database. But if the purpose of seizing assets is to deprive criminals, or suspected criminals, of property used in the commission of crimes, and not as a method to fund their agencies, then shouldn’t they be okay with a portion of whatever is seized going to fund a database that would build trust in the system? Meanwhile, supporters and opponents of asset forfeiture are eagerly anticipating the court’s ruling in June. Regardless of the decision, Alabama’s asset forfeiture law should take a step in the right direction… and into the light. J. Pepper Bryars, author of American Warfighter, is a senior fellow at the Alabama Policy Institute. Follow him on Twitter at @jpepperbryars.
Alabama Appleseed files amicus brief to rein in civil asset forfeiture and policing for profit
Alabama Appleseed — a non-profit, non-partisan organization whose mission is to work to achieve justice and equity for all Alabamians — joined a diverse group of twelve organizations asking the U.S. Supreme Court (SCOTUS) essentially to rein in civil asset forfeiture. The unique practice of civil asset forfeiture, which some consider to be “policing for profit,” allows police to seize — and then keep or sell — any property they suspect is part of criminal activity. Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government. Now, Alabama Appleseed along with organizations the include the Drug Policy Alliance, FreedomWorks, NAACP, and Americans for Prosperity, have specifically asked the SCOTUS to find that the Eighth Amendment’s excessive fines clause, which states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted,” applies to all 50 states. The brief reference a case the SCOTUS agreed to hear back in June, Timbs v. Indiana. The case, an Indiana man named Tyson Timbs used his 2012 Land Rover to purchase and sell heroin throughout the state. He later pled guilty to dealing and conspiracy charges, paid approximately $1,200 in fees, and received a six-year sentence: one year of home detention and another five years on probation. Additionally, the state of Indiana sought forfeiture of his Land Rover because he had used the vehicle to transport drugs. But Timbs had bought the vehicle legally with proceeds from his father’s life insurance policy. In court, the Indiana Court of Appeals refused to allow the civil asset forfeiture, finding it “would be “grossly disproportional to the gravity of [Timbs’s] offense” and such actions violated the Eighth Amendment’s excessive fines clause. However, on appeal, the Indiana Supreme Court reversed the decision saying the Eighth Amendment clause does not apply against the states. According to Alabama Appleseed, this amicus brief “highlights the broad, ideologically diverse consensus around the need to restrain governmental abuse of civil asset forfeiture programs.” “Civil asset forfeiture has evolved from a program intended to strip illicit profits from drug kingpins into a revenue-generating scheme for law enforcement that is widely used against people — disproportionately African American — accused of low-level crimes or no crime at all,” said Frank Knaack, executive director of Alabama Appleseed. “We join a diverse set of organizations… in asking the U.S. Supreme Court to recognize that civil asset forfeiture’s current incarnation has become a stark example of the abuse of power that the excessive fines clause was meant to curtail.” In addition to Alabama Appleseed, a full list of signatories to the brief include: Drug Policy Alliance FreedomWorks National Association for the Advancement of Colored People (NAACP) The Brennan Center for Justice at NYU Law School Americans for Prosperity Law Enforcement Action Partnership Independence Institute (Colorado) Libertas (Utah) Colorado Criminal Defense Bar Drug Policy Forum of Hawai’i The Rio Grande Foundation (New Mexico) Read the full brief below:
State Senate votes to reform controversial practice of civil asset forfeiture
The Alabama Senate on Wednesday voted 25-1 to reform one of the state’s most controversial practices — civil asset forfeiture. Civil asset forfeiture allows police to seize — and then keep or sell — any property they suspect is part of criminal activity. Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government. Which is Birmingham-Republican state Rep. Arnold Mooney introduced to HB518, to try and help improve the often unchecked, and unfair process. HB518 creates the Forfeiture Database and Reporting Act, which would require law enforcement to report information including the date of property seizure, the type of property seized, the place of the seizure, the value of the seizure, the alleged criminal offense that led to the seizure, as well as the outcomes of criminal cases related to seizure when applicable. Mooney had originally introduced a bill HB287 — along a companion bill in the Senate, SB213, introduced by his colleague Decatur-Republican State Sen. Arthur Orr — that would have required a criminal conviction for property seizures. But the bills ultimately went nowhere due to pushback from prosecutors and law enforcement officers who argued the seizures are a valuable crime-fighting tool. The bill now moves to the State House.
Senate committee votes to end civil asset forfeiture by police
Courts in 14 Alabama counties awarded $2.2 million to law enforcement agencies through civil asset forfeiture actions filed in 2015 – a practice some Alabama lawmakers is hoping to end. Civil asset forfeiture essentially allows law enforcement take and keep property even if its owner isn’t convicted of a crime. On Wednesday, the Alabama Senate Judiciary Committee approved a bill to change the civil asset forfeiture process in hopes of protecting the property and due process rights of Alabamians. Under current state law, law enforcement agencies can seize property on the mere suspicion that it was either involved in a crime or derived from certain criminal activity. A civil court then decides whether the agencies involved can keep it. In these court proceedings, while the initial legal burden falls on the prosecutor, the low standard of proof means that the property owner carries the burden of proving the property is “innocent” of the alleged crime. “Civil asset forfeiture is broken beyond repair,” said Sam Brooke, deputy legal director for the SPLC. “We urge legislators to ensure that only people convicted of a crime can lose their property through criminal forfeiture and to bring transparency and accountability to the forfeiture process. These reforms would protect due process rights and hold those who commit crimes accountable.” HB287: the Forfeiture Accountability and Integrity Reform Act, or FAIR Act, introduced by Indian Springs-Republican State Rep. Arnold Mooney, would do just that. The legislation would put an end to civil asset forfeiture in Alabama in the absence of a criminal conviction. 25 states and the nation’s capital city have already already gotten rid of civil asset forfeiture without a conviction.
