Attorney General Jeff Sessions expanded local law enforcement officers’ authority to keep seized private property through civil asset forfeiture, but many states were already far ahead of him.
Civil forfeiture allows federal, state, and local officials to take ownership of private property — money, cars and even homes — that is connected to illegal activity, even without an indictment or criminal conviction. North Dakota and Massachusetts are tied for the worst states in the U.S. on civil forfeiture, according to a study from the Institute for Justice (IJ). Both received an “F” from the group on the issue, but the rest of the country isn’t much better — a full 21 states are tied at “D-.”
The study sorted states based on their legal standards required to justify forfeiture, how much of the forfeited revenue goes toward law enforcement officers’ own budgets and whether the burden of proof is on the defendant to establish innocence.
“The highest standard is ‘beyond reasonable doubt,’ which is about 95 percent certainty of guilt,” IJ Senior Legislative Counsel Lee McGrath told The Daily Caller News Foundation. “The lowest standard is ‘probable cause, which is about 35 percent certainty.”
In North Dakota and Massachusetts, law enforcement keeps 100 percent of forfeited revenue, prosecutors must only establish probably cause and it’s on defendants to prove that their property was not involved in a crime, McGrath said.
In civil forfeiture cases, the government prosecutes property rather than individuals. States do this to avoid needing to convict someone of a crime before taking ownership of their property.
As a result, civil forfeiture cases often have truly bizarre titles, such as South Dakota v. Fifteen Impounded Cats, United States v. Approximately 64,695 Pounds of Shark Fins and United States v. Articles Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls.
A forfeiture victim in North Dakota and Massachusetts doesn’t enjoy due process because his property is being litigated rather than him, meaning he has to prove his own property’s innocence. Furthermore, the probable cause standard means property can still be forfeited if it only “might” have been involved in a crime.
States base these civil forfeiture laws on old admiralty law, which originated as a tool allowing nations to enforce their trade policies on foreigners shipping goods, McGrath said. Because governments don’t have jurisdiction over non-citizens, they would prosecute the goods found to be in conflict with trade policy rather than those shipping it.
The difference, McGrath claimed, is that American law enforcement has jurisdiction over everyone in the United States, making it unnecessary to prosecute property.
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