After years of trying, state Sen. Arthur Orr is finally getting traction in his effort to reform civil asset forfeiture in Alabama.
On Tuesday, the Senate approved, 28-0, Orr’s bill reining in civil asset forfeiture. Orr has tried unsuccessfully in the past to end the practice entirely. Civil asset forfeiture is when the government seizes a person’s property as part of a civil rather than criminal action. That means it can occur before a person has even been charged with a crime, much less convicted. Some people who have never even been charged spend years trying to get their property back from the government.
As originally written, Orr’s Senate Bill 210 would have ended civil forfeiture for criminal drug offenses and instead make the forfeiture process part of the criminal court. This, however, was too much for district attorneys, sheriffs and other law enforcement groups, which have thus far opposed all efforts to stop them taking the property of people who have yet to be found guilty of any criminal wrongdoing.
Orr’s compromise bill, which law enforcement finally signed off on and which the Senate passed unanimously, sets dollar limits on what the state may seize.
Law enforcement would not be able to seize cash less than $250 or vehicles worth less than $5,000. The bill also streamlines the process for “innocent owners” to get their property back: for example, if someone borrowed a vehicle and used it without the owner’s knowledge to commit a drug crime. Perhaps most importantly, Orr’s bill codifies case law that says the value of items seized can’t be disproportionate to the crime. For example, Orr said a $60,000 vehicle can’t be seized because someone has a misdemeanor drug possession charge.
Orr calls his bill a “a good first step to reducing the number of forfeitures,” and he is correct. It is just a first step. Law enforcement lobbyists, however, seem to regard it more as mission accomplished. They still defend civil asset forfeiture.
“Asset forfeiture is a critical tool in the fight against crime and criminal enterprises,” said Barry Matson, executive director of the Alabama District Attorneys Association.
None of that, however, changes one single critical fact: Civil asset forfeiture, by taking the property of people who have not yet been convicted of a crime, treats those people as presumed guilty rather than presumed innocent. As such, it runs counter not only to American legal traditions but contrary to 1,000 years of English common law.
While civil forfeiture can arguably be traced back to some of the British naval practices that angered the American colonies, in its present form it is a much more recent innovation, rooted in Prohibition and the war on drugs, both of which had a corrupting influence on the rule of law.
Because of this, the tide has started to turn against civil asset forfeiture in the past decade. New Mexico has abolished civil forfeiture entirely, while Nebraska, Montana, Connecticut and North Carolina now require a criminal conviction before any civil forfeiture may be undertaken.
Enforcing the laws is not supposed to be a profit-making undertaking for law enforcement agencies. But there is ample research that suggests civil asset forfeiture, and the prospect of seizing property, influences law enforcement decision-making. In short, law enforcement responds to incentives, which may run counter to the best ways of actually fighting and deterring criminal activity, and which influence the types of criminal activity law enforcement may prioritize.
So, yes, Orr’s bill is a first step, but it shouldn’t be the last.