The Road to Reform Civil Asset Forfeiture

Is the broken system of Civil Asset Forfeiture at all redeemable?  Shockingly, the government is taking steps to attempt to find issues and, one can assume, fix them.  On July 24, The Tennessee Advisory Committee to the U.S. Commission on Civil Rights met in Nashville to hear testimony and concerns regarding Civil Asset Forfeiture.  The first panel was Law Enforcement Officials made up of three District Attorneys and one police officer, the second panel included five State Representatives and the third had individuals from various national organizations such as the Charles Koch Institute and Institute for Justice.  Throughout the hearings, multiple problems, statistics and improvement suggestions were brought to the table.  There are five main reform suggestion categories below; read and see what you think will work.

1. Criminal conviction along with seizure

This is probably the most common suggested reform of Civil Asset Forfeiture.  Statistics drastically varied during this hearing ranging anywhere from 3%-51% of CAF cases resulting in criminal conviction.  District Attorneys Crump and Dunavant argued that criminal conviction would not produce the results they’re after.  Most of the time, officers and attorneys are not seeking the individuals on the street selling drugs or those driving thousands of dollars from drug sales but instead the individuals higher up orchestrating the drug market itself.  Many times a District Attorney will use those lower on the totem pole to help convict individuals at the top by offering a plea bargain.  If criminal conviction becomes the requirement, they wouldn’t have the option to not charge a low standing middle man.  Logical? Sure.  However, wouldn’t a criminal conviction help deter mules and low-totem pole dealers from participating in the illegal drug trade?  Maybe.. well, probably not.

2. Legislative oversight of funds

A number of people at the hearing advocated for this.  District Attorney Funk being the first, suggested the assets seized should go into the State General Fund and then re-distributed rather than directly to the task force or department conducting the seizing.  Almost immediately, District Attorney Crump discussed the loss of funds from the “Equitable Sharing Process” with the federal government.  Basically, if the state has been tracking a case for a while and the feds see that it will either (1) lead to a significantly large bust or (2) includes many states, they ask TN if they can step in and take over.  Whatever assets are seized as part of that case, TN would receive 80%.  This would NOT happen if the funds are deposited into the State General Fund as the Federal regulation does not allow for it.  In that case, the federal government keeps all of the assets seized.  

Representative Daniels was under the impression that the state could simply say “no thank you” to the federal government when they asked to intervene therefore keeping all the assets seized.  The question came up as to why this would be necessary, claiming that the LEO would never seize property for the sole purpose to fund their own salaries.  Supposedly, the budgets for such departments are based on “what we have, not future expectations.”  While Legislative oversight might cut down on some seizures and unnecessary spending, it really just leads to more bureaucracy.

3. First hearing to include the actual victim, er… criminal?

According to the Department of Safety website, the purpose of the first hearing is to settle out of court.  I could go into all the ways in which this manipulates innocent parties, wastes time, money and is entirely unfair (what part of CAF is fair, though?) but instead, we’ll skip that and stay on topic with CAF reform.  Currently, only the Law Enforcement Officer and prosecuting attorney are allowed to present a case at the first hearing, leaving the claimant completely defenseless.  Not until the second hearing (approximately 3 months later) can the claimant present their case.  

Someone on all three panels I heard suggested to reform the process of hearing these cases.  The first hearing’s purpose should be to weed out wrongful claims; change what sort of evidence is allowed and who is allowed to speak.  Along with this, Representative Carter suggests that a non-present owner’s property should not go into the system until that person has been contacted.  Apparently, this is the biggest issue in Tennessee; assets being seized that do not belong to the individual in current possession of them - i.e. family member's car, work vehicle, etc.  This section of reform seems like the most logical first step to me.  It addresses one of the most major problems with Civil Asset Forfeiture: the process itself.

4. Create/raise the minimum dollar amount

Mr. McGrath of the Institute for Justice suggests drawing the line at say $100,000; nothing less than that amount will be seized.  He says this is the key to catching the higher up drug bosses.  In the previous panel to McGrath’s, District Attorney Crump pointed out that once a limit is set, mules and drug dealers will begin carrying just less of the limit.  McGrath was reminded of this previous statement and he argued that a criminal will continue to do what they’ve always been doing, a new law won’t hinder criminal strategy. Touché, Mr. McGrath.

5. More training

The entire time “training” was discussed, it was never actually explained. Law Enforcement Officials, District Attorneys and Mr. McGrath all discussed the need for clear guidelines and training.  However, the details of said training were lacking.  Okay, sure.  Better training (whatever that is) is necessary, I think we can all agree with that.  Although, an overly simplistic reform to a systematic problem.

Ultimately, very few realistic, problem-solving reforms were suggested.  The first panel, Law Enforcement Officials, seemed to criticize the system a bit, but mostly defended it as a whole.  The second panel, Legislative, criticized more heavily but still appeared to believe in the theory of Civil Asset Forfeiture.  Finally, the third panel, National/State Organizations almost all but condemned the entire process.  It was refreshing to hear a wide range of opinions and I only hope that the Tennessee Advisory Committee heard, really heard, what they had to say.

At one point in time, I looked at a fellow libertarian and said “you know, if only drugs were legalized, this problem would be almost entirely eliminated” and she agreed with a chuckle.  Yes, sir. Legalize drugs. End Civil Asset Forfeiture.  What do you think of it all?  Do you think Civil Asset Forfeiture is a redeemable or lost cause?

ArticleKenna Lea