New Mexico moves to curb civil asset forfeitures by police

Perhaps it’s just the arrival of Spring which has put me in a more hopeful mood of late, but there seem to be some opportunities for government to actually do something good for a change. The other day I pointed to the possibility that Congress might get together and pass the Sportsman’s Act. Now, thanks to the good folks in New Mexico, there is a glimmer of hope that a more egregious problem might be addressed.

Last year we looked at the widespread problem of law enforcement and government officials at the local, state and federal levels using the practice of civil forfeiture to grab up the assets of citizens. This takes place even in cases where there was never a conviction for any crime, with the citizen left to fight their way through the courts to “prove their innocence” and get their cash or property back. Examples of this often literal highway robbery are far too numerous to be ignored at this point. Eric Holder made a couple of moves to scale back the practice, but they were half measures at best which are easily thwarted by determined agencies. (Holder’s effort failed to cover numerous loopholes in the equitable-sharing program.)

Things may finally be changing, however. Several states have responded to public outrage over this legalized theft and tried to turn back the tide. The latest effort, as reported by Forbes, is taking place in New Mexico.

New Mexico is on the verge of a complete turnabout. Both chambers of the state legislature have unanimously passed HB 560 sponsored by Representative Zachary Cook. Cook is a Republican, and the GOP controls the House 37 to 33, but the Senate is controlled by the Democrats, 24 to 17. Nevertheless, it passed without a single no vote and now awaits Governor Martinez’s signature.

The key provisions of the bill include that no citizen will suffer forfeiture prior to conviction of a criminal act, that proceeds from forfeitures in those cases will go into the state’s general fund and not into the coffers of the seizing agencies (thus removing the temptation for, as the Institute for Justice puts it “policing for profit,”) and that state and local law enforcement agencies will not be able to get around the state law by resorting to the federal “equitable sharing” law.

The two key features of this legislation should be common sense and could provide a model for making this reform go national at the federal level. (More on that below.) Item one is to bar any seizure of assets until someone is actually convicted of a crime related to the assets in question. That should be a no-brainer. Physical assets can be placed on hold (i.e. in an evidence locker) while an investigation and trial is underway, but cannot become the “property” of government or law enforcement, sold off or otherwise liquidated unless there is a conviction. If the suspect is cleared or if the investigation is dropped, the property must be returned. In the case of cash seizures, money in bank accounts or other holdings can have a freeze put on them while the process plays out, but the cash can’t be surrendered to the government agency absent a conviction.

Second, the sole motive for agencies robbing their own citizens is removed by mandating that any assets collected from those who are convicted do not go directly into the coffers of the police activity or government agency conducting the seizure. Such profits would instead go into the general treasury and, ideally, be reported to the public in each incident. How either of these provisions could be seen as remotely controversial by the average voter is a mystery, so there should be no trouble instituting such a policy. But how about at the federal level?

There’s already a plan on the table and it comes from Rand Paul.

Furthermore, civil asset forfeiture is under attack at the federal level. Senator Rand Paul and Representative Tim Walberg have reintroduced the Fifth Amendment Integrity Restoration Act (FAIR, of course, since most bills these days have catchy acronyms) which, inter alia, raises the level of proof required for seizure, abolishes the “equitable sharing” program, and, as in the New Mexico legislation, eliminates the temptation to grab property for the benefit of the agency’s budget, by requiring that any proceeds go into the treasury.

The FAIR Act doesn’t go quite as far as I’d like to see in terms of “raising the level of proof” required to take your cash or property – as opposed to waiting until you are convicted – but it’s at least some progress. It might also create enough awareness of the problem that the media and citizen journalists could keep an eye on seizures and shine some sunlight on the process.

It would be good to see this taken up as a campaign issue. Whether it plays in favor of Rand Paul or not shouldn’t be a consideration. Let’s find out where all of the candidates stand on it and then get some reporters on the task of asking legislators whether this is going to make it to the President’s desk. Once in a blue moon the government can actually do something productive and this is just such an opportunity.

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