Last week, State Senator Kyle Loveless, R-Oklahoma City, introduced the latest version of the Personal Asset Protection Act, a sweeping overhaul of Oklahoma’s civil asset forfeiture laws.
Civil forfeiture is the legal tool that enables law enforcement authorities to seize cash and property, often on the mere suspicion that it was involved in, or the direct result of, illegal activity. Though it was originally ramped up in the 1980s to target the ill-gotten gains of drug kingpins and criminal organizations, today’s forfeiture laws are so broad that hundreds of crimes—from driving on a suspended license to making too many bank deposits—allow for property to be confiscated.
In most states, including Oklahoma, the government does not need to charge, much less convict, the owner of a crime in order to forfeit his property. In fact, the burden is usually on the owner to effectively prove his own innocence if he wants to win back his cash, car, or home.
Under Oklahoma law, the agency that seized the property gets to keep the proceeds generated by its forfeiture, giving law enforcement officials the ability to self-finance in a manner wholly separate from the normal political appropriations process. Historically, legislatures have held the power of the purse as a means of addressing competing priorities and of holding government agencies accountable to the people for how they spend the money they receive.
Enabling law enforcement to generate their own revenue via the forcible seizure of property has eroded that basic tenet of democratic government, with real and alarming consequences for citizens of the Sooner State.
One elderly couple in Creek County, for example, spent three nights in jail following a drug raid and had their vehicle and boat seized despite no evidence of drugs being found. There was a very good reason why the sheriff’s deputies came up empty-handed: They had raided the wrong house.
Charges were eventually dropped for lack of evidence, but the Goss family still lost their vehicle when they could not pay the impound fees. Their only “crime” was, in a very literal sense, being in the wrong place at the wrong time.
In Beaver County, one assistant district attorney decided that a house his office had forfeited would make the perfect residence. He lived in it, rent-free, for five years—even billing the DA’s office for the utilities. Another assistant district attorney used $5,000 in forfeited assets to make student loan payments, a clear violation of state law that the DA’s office nevertheless defended.
The lack of transparency, oversight, and accountability makes transgressions like these more likely, since they can be swept under the rug with relative ease.
Justice Louis Brandeis once commented that sunlight is the best disinfectant. In the world of civil forfeiture, there is precious little of sunlight.
Enter Loveless, whose comprehensive reform bill contains many provisions designed to rectify the iniquities of forfeiture law in his state. His 49-page proposal would:
- Require a criminal conviction before property may be forfeited. The bill also wisely creates a number of narrow exceptions for certain situations—for example, a suspect may be granted immunity in exchange for cooperating with the authorities—where property can be tied to crime, yet a conviction cannot be attained.
- Raise the standard of proof in the civil forfeiture proceeding to “clear and convincing,” a higher (and more suitable) standard than the current “preponderance of the evidence.”
- Close the equitable sharing loophole, unless the seizure includes $50,000 in cash. Federal equitable sharing enables state and local agencies to seize property, then transfer it to federal agency partners to be forfeited under federal law. The seizing agency then gets up to 80 percent of the proceeds. Equitable sharing payments were recently suspended, but property seizures are unaffected. Closing this loophole will ensure that state agencies can no longer wantonly circumvent Oklahoma law, while the exception (cash seizures of more than $50,000) will preserve the ability of law enforcement authorities to partner with federal agencies to target major drug organizations—civil forfeiture’s main focus.
- Transfer forfeiture proceeds to a “Forfeited Assets Distribution Revolving Fund” controlled by a 15-member Oversight Board composed of representatives of the law enforcement community and the general citizenry. The Oklahoma governor, president pro tempore of the Oklahoma senate, and speaker of the Oklahoma house of representatives would each be responsible for appointing five members, and the board would dole out forfeiture funds in the form of law enforcement grants. While still having some incentive to forfeit property, Oklahoma agencies would no longer have a direct financial stake in civil forfeiture (in that they would no longer automatically get to keep the resulting proceeds), and the board would bring much-needed oversight to forfeiture financing.
Loveless’ proposal is entirely reasonable. Unlike in other states that have passed (or are considering) forfeiture reform measures, his bill leaves forfeiture revenues available to law enforcement agencies as they continue to fight the scourge of drugs and organized crime. He also recognizes that asset forfeiture may, in certain situations, be justified even absent a criminal conviction.
Unfortunately, the law enforcement community in his state has lined up solidly in opposition to any reform of civil forfeiture laws, resorting to scare tactics and personal attacks to deflect attention from their own poor record and the ever growing list of abusive and unjust property seizures.
Residents of Oklahoma should not buy their arguments. Forfeiture reform is about accountability, not about depriving law enforcement agencies of funds or crime-fighting tools. If the principal objection to reform is that the authorities ought to be able to seize anything, from anybody, and then spend the proceeds as they see fit, then they have framed the case for forfeiture reform more perfectly than any policy analyst or legislator ever could.
Loveless’ Personal Asset Protection Act contains a number of meritorious provisions that deserve serious consideration. Forfeiture laws must be changed—not only in Oklahoma, but throughout the nation. Until then, Americans will continue to be at risk of losing their hard-earned money and property to a system that is alarmingly indifferent to their actual guilt or innocence.