On May 19, Maryland Republican Governor Larry Hogan signed into law House Bill 336, which had the support of 167 of Maryland’s 185 elected representatives. Americans are politically polarized, but agree on one matter: they do not like it when government steals from innocent people.
The Maryland bill further curtails the state’s civil asset forfeiture programs. Civil forfeiture, at least according to the Justice Department, “deprives wrongdoers of the proceeds of their crimes.”
Civil forfeiture does not require proof.But there is just one glaring omission from this definition—civil forfeiture does not require any proof (or even claim) that people committed crimes for the government to take their property.
By the twisted logic of civil forfeiture, property itself is charged with the crime. This is why civil forfeiture cases have absurd names such as United States v. One Solid Gold Object in Form of a Rooster or United States vs. $35,651.11 in U.S. Currency.
Since the Bill of Rights covers property owners instead of property, victims of civil forfeiture are forced to prove their property innocent in order to get it back. And they are not entitled to legal assistance. This is why many people do not fight back after their property is seized—it is simply too expensive to win a court case against the government.
The Maryland bill, which takes effect October 1, will establish a minimum amount of money to trigger a civil seizure; create more comprehensive reporting requirements; heighten the burden that law enforcement must meet to “clear and convincing evidence” in order to claim that owners knew their property was connected to criminal activity; completely exempt some property from forfeiture without a criminal conviction; and cut off most of enforcement’s ability to transfer seized property to the federal government.
This last change is critical. Without it, any state reforms are ineffective. To bypass laws that some states have to protect property owners, seized funds are often transferred to the federal government before being returned to local law enforcement. Under this equitable sharing program, the Justice Department usually keeps 20 percent, while local law enforcement departments use remaining funds.
The Institute for Justice’s November 2015 study, Policing for Profit, found that from 2000 to 2013 state and local Maryland law enforcement received over $80 million from the Department of Justice by participating in its equitable sharing program. But once Maryland’s reforms are in effect, seized property will not be able to be transferred to federal agencies unless the value of the property is over $50,000 or the transfer follows a federal warrant.
Beyond Maryland, other jurisdictions, including New Mexico, Minnesota, and Washington, DC recently passed civil forfeiture reforms, but the problem is far from solved. And civil forfeiture continues to lead to innocent Americans being victimized. Take, for example, 24-year-old Charles Clarke. He was about to fly home to Florida from Cincinnati, Ohio when law enforcement officers searched his bag. They found his life savings—$11,000—and seized it, even though they had no evidence that he committed any crime. Although officers found no evidence of criminal activity, they did not return Clarke’s funds.
Who, one may ask, possibly supports civil forfeiture, a program that would be more at home in Venezuela or Russia than in America? The answer: law enforcement agencies and their political defenders.
This is not Maryland’s first package of civil forfeiture reforms. Last year, another reform bill was passed, but Hogan vetoed it due to heavy pressure from law enforcement. To justify his veto, Hogan used scare tactics about the “heroin epidemic.” This same reasoning was used this year by New Hampshire governor Maggie Hassan when she recently threatened to veto a civil forfeiture reform bill.
After the Maryland legislature’s override of Hogan’s veto, the law enforcement lobby saw little reason to fight the latest bill. As the Maryland Sheriffs’ Association’s executive director Karen Kruger told the Washington Post, “After the governor’s veto was overridden from last year, the message from the legislature was clear. It did not appear any opposition was going to have any effect this time around.”
The reason for this support is that law enforcement has taken a program that was first meant to combat drug cartels, and then to stop terrorism funding networks, and turned it into a cash cow for their budgets. Police department have bought everything from a Zamboni, to a margarita machine, to first class plane tickets with civil forfeiture funds.
Of course, if a case can be made that law enforcement needs increased funding to protect people, then by all means states and localities should give these departments increased funding. But gaining resources by stealing property from the very people who law enforcement is supposed to protect is wrong on every level.
Additionally, if someone was convicted of a crime they should not profit off of it. But that is why criminal forfeiture, which unlike civil forfeiture requires a conviction, exists. Civil forfeiture is much more common than criminal forfeiture—only 13 percent of Department of Justice forfeitures from 1997 to 2013 were criminal, whereas 87 percent were civil.
Law enforcement would be wise to stop pretending that legal acts, such as simply carrying cash—even large amounts of cash—are crimes. If they chose not to, policymakers across the country need to follow Maryland’s example and stand up for Americans’ property rights.