Sept. 20, 2015
Sen. Kyle Loveless is the author of SB 838, the Personal Asset Protection Act which would give more protection to innocent property owners from the practice of civil asset forfeiture. It is a good bill but to my dismay, I keep running into misconceptions about the measure. Legislation is a little tricky to read and often, the media does not break them down very well.
In this post, I will show you the bill and point out the four major reforms it would accomplish.
A tiny bit of background first. Civil asset forfeiture allows the government to take property that they assert to have been gained or used in the commission of a crime.
There is a difference between civil and criminal asset forfeiture.
Civil forfeitures are based on the unlawful use of a property irrespective of an owner’s culpability. Civil forfeitures followed the rules of civil procedure.
Criminal forfeitures are subject to all the constitutional and statutory procedural safeguards available under criminal law. The forfeiture case and the criminal case are tried together. Forfeiture counts must be included in the indictment of the defendant which means the grand jury must find a basis for the forfeiture. At trial, the burden of proof is beyond a reasonable doubt.
Unlike criminal asset forfeiture, civil asset forfeiture does not require a conviction. In fact, the person who has their property taken under civil asset forfeiture may not even be charged with any crime.
OKLAHOMA CITY — Over a five-year period, law enforcement officials in 12 Oklahoma Counties seized more than $6 million in cash, almost $4 million of which was taken without any criminal charges…
Records indicate that of the $6.1 million dollars taken, only $2.1 million was seized from people who were actually charged with a crime, meaning more than 65 percent of the cash seized was taken without any criminal charges being filed.
Some legal experts would like to see asset forfeiture ended with few exceptions but most states aren’t willing to simply banish the practice. In the meantime, important reforms can and should be made.
Scott Bullock, senior attorney at the Institute for Justice offers five recommendations for states who are will not summarily call a halt to asset forfeiture. He recommends that states:
1. Place seized revenues in neutral funds
2. Increase the standard of proof for seizure to require “clear and convincing evidence” of a crime,
3. move the burden of proof to the government,
4. Make the tracking of seized assets more transparent,
5. Eliminate “equitable sharing” arrangements.
SB 838 by Sen. Loveless would accomplish three out of those five reform recommendations (plus one more important one that is not on Bullock’s list )
I have heard some people say that the only thing that this bill does is take the proceeds gained through civil asset forfeiture away from the police and give them to the state. It’s not true.
I find four substantial reforms in SB838 in addition to removing the profit incentive for civil asset forfeiture.
1) SB 838 requires a conviction before property can be taken by the government
2) SB 838 puts the burden of proof on the government taking the property. They have to prove guilt rather than the individual being threatened with the loss of their property having to prove innocence
3) SB 838 raises the amount of evidence required for the government to take the property
4) SB 838 increases due process by providing trial by jury to all who are involved in an asset forfeiture claim by the state.
If removing the direct profit incentive by moving the funds gained through asset forfeiture to the state’s general fund as proposed by SB 838, seems problematic to you, Sen. Loveless has gone on record stating that he is open to other methods of putting a buffer between the profit and the agency seizing the property.
So, let’s take a look at the actual bill, SB838
Remember, when reading amendatory legislation such as SB 838, only the underlined or stuck though language is new (the changes being proposed by the bill) the rest is just a recitation of current law.
The very first thing SB 838 does is require that there be a conviction before taking a persons property by adding the language “upon a person’s conviction”
Currently there is no qualification that the property is subject to forfeiture only after a conviction. (That is why it is called civil as opposed to criminal asset forfeiture)
If SB 838 became law, The property could still be seized if the officer or agency has a reasonable suspicion that there is criminal wrongdoing associated with it however, a criminal conviction would be required before property could be taken (forfeited).
As I read it, this bill would end civil asset forfeiture. All asset forfeitures would have to be criminal.
The next thing the bill does is strikes the portion of existing law that puts the burden of proof on the individual having his property taken.
The third thing that SB838 does is increase the amount of evidence required for the government to take a person’s property.
SB838 would require “clear and convincing evidence” to be established before your property can be taken by the government.
Currently the standard for the state taking ownership of your property is by a “preponderance of the evidence” which means simply that if there is one feather weight of evidence that lends more than 50% certainty that plaintiff’s (in this case, the state) version of events is true, then they can take your cash or property from you.
“Clear and convincing evidence” raises the bar and affords much better protection to the innocent property owner.
The fourth reform in SB 838 is the addition of the right to a jury trial for any party to a forfeiture action. It is my understanding that currently, there is no right to a jury trial in civil cases involving less than $1,500.
The remainder of SB 838 deals with removing the direct profit incentive by requiring that the proceeds from asset forfeiture be moved to the state’s general fund. Currently the proceeds go directly to the agencies that forfeit the property and the concern is that this incentivizes civil asset forfeiture.
In my opinion, this bill simply affords Oklahomans the basic justice that those who have not run up against a civil asset forfeiture claim, think they already have.