Civil Asset Forfeiture Proponents Water Down Reform Bill

October 31, 2016 by

Texas and Pennsylvania don’t share many similarities – except when it comes to the lack of protecting property owners from civil asset forfeiture.

These states have some of the worst laws regarding civil asset forfeiture, and both legislatures have been primed to fix it. While Texas’ lawmakers aren’t currently in session, Pennsylvania’s are, and the fact that a bill that would have significantly reformed civil asset forfeiture was gutted by the state’s prosecutors’ association should serve as a cautionary tale to those pushing reforms here in the Lone Star State.

Civil asset forfeiture is a tool used by law enforcement to seize assets of those suspected of criminal activity. Seized assets go through a civil proceeding which allows them to be forfeited regardless of whether or not the owner is ever charged or convicted of a crime, and often they are not. While its intended purpose was to disrupt drug syndicates by seizing illicit cash and infrastructure used to support that activity, it has since devolved into a process with such a wide net that many innocent law-abiding individuals get dragged in.

To reform this process, the Pennsylvania legislature took up the issue in the form of bipartisan Senate Bill 869, sponsored by State Sens. Mike Folmer (R-Lebanon) and Anthony Williams (D-Philadelphia). A memo attached to the bill reads, “In many publicized cases, the property owners themselves are either completely innocent or only tangentially culpable in the drug-related offense.”

The proposed reforms would have been monumental for property owners, but as an investigation by Philly Mag’s David Gambacorta found, “after intense lobbying by the Pennsylvania District Attorneys Association, the bill was modified last month to remove the most meaningful provisions.” After removing the true teeth of the bill, it was passed by the Senate and moved to the House Judiciary Committee.

The two main reforms of SB 869 were that it would require a criminal conviction of the property owners prior to the District Attorney seizing their money or other assets. If enacted, these provisions would largely end civil asset forfeiture in the state.

It also required that all seized cash, or cash proceeds from the sale of forfeited property, be deposited into the general fund of a city or county rather than directly into the bank account of the agency doing the seizing. This would remove the perverse incentive for many cash-strapped law enforcement agencies who often use forfeited assets, or their proceeds, to outfit offices, purchase vehicles, and buy supplies. It would also eliminate the equitable sharing incentive, which is the portion of a forfeiture given to a local agency from a federal agency for their participation in a seizure.

Sen. Williams commented on the tapered down version saying, “Some people will argue it’s better than nothing, which is true, but it’s not much more than that.” Gambacorta points out that Philadelphia’s forfeiture system can oppose reform, but it may be inevitable as they are facing a federal lawsuit from the Institute for Justice over their DA’s civil asset forfeiture practices.

Pressure from local law enforcement is the same from Pennsylvania to Texas. Though not all agencies depend on this additional revenue stream, many do and will oppose any reforms that diminish it. Williams said, “You heard a lot of, ‘I want to support this, but my local district attorney is popular…’”

Even recently, Harris County’s District Attorney Devon Anderson, who is seeking reelection said, “Our budget is 98.7 percent salaries…we do have to use asset forfeiture money for [office supplies].” So, it is easy to understand why many argue that agencies have an incentive to seize assets when they are using it to pay for basic necessities.

Texas legislators, such as State Sen. Konni Burton (R-Colleyville), have vowed to reform civil asset forfeiture this upcoming session, but it wouldn’t be the first time a bill was filed.  For success, reformers need to ensure that their voices drown out the voices of those whose revenue streams are dependent on the continuation of civil asset forfeiture.

Other promising reforms remain as options, such as increasing transparency in each case, raising the burden of proof that prosecutors need, and stricter reporting requirements to and from the Attorney General’s office, but allowing even one innocent property-owner in Texas to have their assets improperly seized is one too many.

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About the Author

Charles operates the Houston office for Empower Texans/Texans for Fiscal Responsibility.