Mimesis Law
24 March 2017

Grandma’s Car is Safe From Civil Asset Forfeiture

Apr. 1, 2016 (Mimesis Law) — Civil asset forfeiture was in the news this week. First, the Supreme Court announced that a criminal defendant has the right to use untainted assets to hire an attorney. Second, the Department of Justice announced that it was resuming the Equitable Sharing Program. Critics of civil asset forfeiture have said it is an excuse for police officers to behave like robbers:

Letting law enforcement agencies keep the assets they seize creates dangerous perverse incentives, and often leads to the victimization of innocent people – so much so that the practice has attracted opposition from across the political spectrum. In some states, owners must wait many months or even years before they can even begin to challenge the seizure of their property, a particularly severe burden for relatively poor people, who are the most common victims of such practices. Even those owners who have committed a crime don’t thereby deserve to have their property seized as a result, in addition to the usual punishment imposed on violators. There is no reason why an owner who happened to use, say, his car to commit Crime X should suffer the additional penalty of losing the car, while a criminal who committed the exact same offense without using a car will only suffer the usual fine or jail term associated with the offense.

Sadly, asset forfeiture has become so widespread that law enforcement agencies now use it to take more property than all the burglars in the entire United States. Something is obviously rotten in the legal system when cops steal more property than this large subset of actual robbers.

The primary argument against civil asset forfeiture is that it should always be criminal and never a civil proceeding. Indeed the Institute for Justice rates nearly all states with a C or worse if it has a civil forfeiture mechanism. The exact details of the procedures appear to be entirely immaterial. The reformers demand nothing less than the abolishment of civil asset forfeiture.

Of course, forfeiture as part of a conviction is preferred, and, at least in Ohio, that’s generally how it works. But there are situations where criminal forfeiture is insufficient to truly punish the offender and protect the public. A marginally clever drug trafficker will use their moms, wives, or girlfriends to hide their ill-gotten proceeds.

For example, the vehicle used to transport or sell the drugs can be titled in someone else’s name. Likewise, houses can be purchased with illegal proceeds and deeded to someone else but still used for furthering the criminal activity. And such cases are not limited to only drug cases.

Acquaintances of elderly people will sometimes take advantage of them. This person will drain the accounts of the elderly, isolated person, often purchasing jewelry, cars, and expensive consumer electronics. These thefts can quickly and easily reach six figures. And it’s not just the thief who benefits; they often have a spouse or children who benefit too. Or they are the like the drug dealers who try to hide assets by gifting them to others or titling them in the name of others.

In these cases, the people who received the property are often not sufficiently involved to either be a co-conspirator or complicit in the crimes. So, even if these people are willfully blind to the dramatic increase in lifestyle or lavish gifts, they usually cannot be convicted. Without civil forfeiture, these bad actors would benefit from their association with a wrongdoer, and their willingness to turn a blind eye to the conduct. Only by going after the property purchased with the proceeds can both victims be made whole and the criminal, along with their associates, be fully deprived of their ill-gotten profits.

Proponents of the criminal-asset-forfeiture-only approach typically ignore these types of situations. Instead, they seek to damn the mechanism mostly on the grounds of ascribed motive or lack of procedural safeguards. Despite the approach the Institute of Justice takes, a state can have a civil forfeiture program that adequately protects citizens from overreach.

Although several states have already faced or will face a push to repeal their programs, Ohio currently has a bill under discussion and makes for a useful case study of the hype not matching reality. One of the tropes used by overzealous critics is that the civil standard has a lower standard of proof. True, in Ohio the standard is preponderance of evidence, which is less than beyond a reasonable doubt. But this is the same standard to adjudicate a forfeiture after a conviction.

In addition, these critics argue that the property owner must prove that they are innocent. That’s not true, as the prosecutor bears the burden of proving the case. Likewise, defendants in a civil forfeiture case are entitled to a jury trial. Perhaps they are referring to the process for filing a petition as an innocent owner in a criminal case. But that aspect of forfeiture is not the target of their so-called reform efforts.

Critics often complain that if a drug dealer borrows mom’s car and conducts a drug transaction, then mom will lose her car. But this may not be the case. Because the car was an instrumentality, then it is subject to a proportionality review. If mom would lose her only car, then it’s both unlikely a case would be brought and unlikely that the property would be forfeited. Of course, this is all in addition to all the usual procedural devices available to civil defendants.

Radley Balko has criticized civil forfeiture as policing for profit. To the extent that this is a serious concern, Ohio has addressed this with how law enforcement must handle the funds. Before these funds can be placed in a trust fund, storage costs, restitution, and satisfaction of security interests must come first. Then either 10% or 20% of the deposits must be used for “community preventative educations programs.”

Moreover, this trust fund must have internal control policies, and a report must be filed annually. In the cases of local law enforcement agencies, the local legislative authorities often determine how the funds will be spent—not the police chief. Plus, critics often state that there is a lack of transparency, but these funds are subject to the state’s public record’s law.

In a perfect world, criminals would not try to hide or launder criminal proceeds. Really, in a perfect world, there wouldn’t be crime. In this world, a properly designed civil asset forfeiture program fills the gap that criminal asset forfeiture alone cannot fill. Perhaps Ohio’s system could be tweaked, but that’s not what the critics want. Ohio, like a number of other states, should reject this ill-conceived effort to abolish civil asset forfeiture.

8 Comments on this post.

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  • Hal
    1 April 2016 at 1:17 pm - Reply

    I thought reading things here weren’t supposed to make one stupider. Next why don’t you argue the merits of the death penalty reasoning that safeguards will ensure it never gets wrongly applied.

  • Noel Erinjeri
    1 April 2016 at 2:22 pm - Reply

    “Likewise, defendants in a civil forfeiture case are entitled to a jury trial.”

    Do they get appointed counsel if they can’t afford a lawyer for that trial? If not, it’s meaningless.

    • shg
      1 April 2016 at 2:54 pm - Reply

      To avoid any potential confusion, Andrew is talking about the procedure under Ohio law. It’s nothing like the procedure under federal law.

  • DaveL
    1 April 2016 at 3:29 pm - Reply

    You’ll have to pardon me if I don’t find the argument from “no criminal left behind” terribly persuasive. Measured against giving the state broad powers to seize property on very flimsy pretenses, I find the prospect that some criminals and their associates may escape punishment to be very weak sauce indeed. We have already weighed the need to punish criminals against the need to protect the public from government overreach, and arrived at the standards of proof set by criminal law.

    Also, while the standards set by Ohio may be stricter than those set by Federal law or the law of other states, it seems to me that a “preponderance of evidence” standard strongly favors the state over the individual, given that the former has enormous time and resources with which to argue the case and the latter does not. It’s another example of the law, in its majestic equality, prohibiting the rich and the poor alike from sleeping under bridges and stealing bread.

    It’s true, we don’t live in a perfect world, but in an imperfect world we must guard against biased, self-interested, or vindictive uses of power by prosecutors as much, if not more, than we need to guard against criminals hiding or laundering their ill-gotten proceeds.

  • Patrick Maupin
    4 April 2016 at 10:14 am - Reply

    “But this is the same standard to adjudicate a forfeiture after a conviction.”

    Yeah, and all the Ohio seizures are backed up by convictions — the convictions of prosecutors and police that this free money is too tempting to pass up.

  • Eliot clingman
    5 April 2016 at 9:30 am - Reply

    I get it, there are situations where [using the criminal process ] is insufficient to truly punish the [criminal] and protect the public. And there are legal hacks [a/k/a appellate judges] who say this is all constitutional. Because as the great man Whitestone said, ” better 10 innocent men be punished rather than one guilty be acquited “. And kudos for the equivocation between the Ohio law and federal laws, because most US citizens are also Ohio citizens.

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