THE MONEY DID IT: Civil asset forfeiture assumes seized property itself is guilty of a crime, because doing that to its owner would be unconstitutional.
By Brigette Russell │ Watchdog.org
SANTA FE, N.M. — In 2010, Stephen Skinner and his son got lost driving through New Mexico on their way from Chicago to Las Vegas.
After pulling them over for an improper lane change, Albuquerque police officers seized $17,000 in cash and their rental car, and dropped them off at the airport with only the change in their pockets.
What most people would call highway robbery — literally in this case — federal and state law enforcement agencies call civil asset forfeiture.
In the legislative session that just ended, state Rep. Zachary Cook, a young Republican lawyer from the small town of Ruidoso, sponsored HB560, a bill that would end civil asset forfeiture in New Mexico.
The measure sailed through both the House and the Senate unanimously, and awaits action by Gov. Susana Martinez. Whether, Martinez will sign the bill remains to be seen. Her spokesman Michael Lonergan would tell Watchdog.og only that “the governor will review each bill in its final form and give them all due consideration.”
If Martinez, a former prosecutor who is usually on the same side of issues as the law enforcement community, does reject the decision of the Legislature, it would not be her first veto of a bill to pass both houses unanimously.
Law enforcement agencies in the state are not thrilled with the idea of giving up the lucrative proceeds of a practice dubbed “policing for profit” by its opponents. The New Mexico Department of Public Safety wrote in its analysis the bill “would completely eliminate asset forfeiture revenue that is critical to funding the DPS law enforcement investigations and operations.”
That analysis is quoted in the fiscal impact report on the bill, which says the increased revenue to the general fund would be “indeterminate but substantial.” The bill retains criminal asset forfeiture revenue, but requires all seized assets be sold and the proceeds deposited in the state general fund.
Criminal asset forfeiture occurs when assets are seized after a person has been convicted of a crime. Civil asset forfeiture requires no conviction. The only crime Stephen Skinner committed was not using his turn signal — unless being African-American and getting lost in a white neighborhood is a crime.
The American Civil Liberties Union intervened on Skinner’s behalf and got his $17,000 back.
“But we can’t intervene in every case,” Steven Allen, director of public policy for the ACLU of New Mexico, told Watchdog.org. “It’s too widespread.”
Criminal forfeiture operates as punishment for a crime and requires a conviction, because the Fifth and 14th amendments to the Constitution protect any person from being deprived of property without due process.
Civil asset forfeiture rests on the legal fiction that the property itself, not the owner, has violated the law. Thus, the proceeding is directed against the thing and does not require a conviction or even an official criminal charge against the owner.
Among opponents of the practice is Brad Cates, who was director of the Justice Department’s Asset Forfeiture Office from 1985 to 1989.
“At the time, everyone in law enforcement thought it was appropriate,” Cates said. “We had a scourge of drug trafficking and narco-terrorism, and it seemed harsh measures were necessary and so we enacted such a law, which is based on 16th century English admiralty law.
“I was a federal prosecutor for 10 years, and virtually everyone I worked with in the system has turned against the practice,” he said. “We took billions of dollars from people we thought were drug dealers, and many of them were, but now it’s time to correct it.”
Former New Mexico Attorney General Hal Stratton agrees.
“Nobody should be deprived of any of their property without being convicted of a crime,” he said.
In an in-depth series on forfeiture, the Washington Post found that in the three years following 9/11:
There were 61,998 cash seizures without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion.
State and local authorities kept more than $1.7 billion of that while federal agencies received $800 million.
Only a sixth of the seizures were legally challenged, but in 41 percent of challenged cases, the government agreed to return money.
Settlements often required owners to sign agreements not to sue police over the seizures.
Statistics on New Mexico seizures have not been collected, hence the “indeterminate but substantial” assessment on the FIR. One of the things Cook’s bill requires is more documentation on criminal asset forfeitures.
Last November, Watchdog reported the comments of Pete Donnelly, a Las Cruces city attorney who said civil forfeiture laws could be “a gold mine” for authorities to seize things such as expensive cars and even people’s homes. In the video, Donnelly said, “We could be czars. We could own the city. We could be in the real estate business.”
“Crime should not pay,” said Paul Gessing, president of the Rio Grande Foundation, wrote. “This bill strikes exactly the right balance by allowing law enforcement to bring criminals to justice while protecting the property rights of innocent New Mexicans.”
HB560 would put law enforcement agencies out of the real estate business by sending criminal asset forfeiture proceeds to the general fund rather than into the budgets of law enforcement agencies.
“Nationally, up to 20 percent of a law enforcement agency’s budget is coming from civil asset forfeiture,” Allen said.
“We shouldn’t force our law enforcement agencies to reply upon asset forfeiture as a revenue source,” Stratton said. “That’s not fair of us. We should fund it properly through the appropriations process, since it’s one of the primary functions of government.”
If Martinez signs the bill, it will put the state in the vanguard of the movement to end a practice that groups across the political spectrum, from the progressive ACLU to the libertarian RGF to prominent Republicans like Stratton, regard as unconstitutional.
Minnesota outlawed the practice last year, but most states still allow it. A 2010 Institute for Justice report gives most states a C or D on the justice of their forfeiture laws. New Mexico got a D+.