Protecting Innocent Property Owners: Replacing Civil Asset Forfeiture with Criminal Asset Forfeiture and Other Potential Forfeiture Reforms (2021 Legislative Priorities)

Civil asset forfeiture is the legal process by which law enforcement agencies, particularly local police departments, are able to seize either currency or property from owners under a suspicion that it was used for or obtained through criminal activity.  Once property has been seized by law enforcement, a court then determines if it is subject to forfeiture (i.e., permanent confiscation).

Law enforcement officers need only have “probable cause” that there may be an associated crime in order to seize one’s possessions. This places innocent owners at risk of experiencing unnecessary and obstructive seizures, often during a routine traffic stop. Law enforcement is incentivized to engage in the process of asset forfeiture because the seizing agency (e.g., police department) usually gets to keep a majority of the funds and/or proceeds from the property forfeited. Asset forfeiture funds make up a significant portion of some police departments’ budgets, instead of these agencies appropriately budgeting for necessary operating funds through traditional means.

In addition to the perverse funding incentive to seize property by police, property owners face an uphill battle within the courtroom, if they choose to contest the seizure. As forfeiture is a civil proceeding, not a criminal one, the State is often tasked with meeting a much lower standard of proof to permanently forfeit your assets. Further, unlike in a criminal trial, it is usually on the owner to prove their own innocence if they wish to retain their property rights. The initial seizure of one’s goods and the following judicial proceedings of civil asset forfeiture trials defeats the presumption of innocence foundational to the American criminal justice system. The owner must also travel back to the court in the jurisdiction where the seizure occurred, presenting additional barriers if the traffic stop (or other impetus for the seizure) occurred outside of the person’s hometown or county. Moreover, because the case is civil and it is the property that is charged — resulting in case names such as State of Texas v. One 2003 Chevrolet Silverado or State of Texas v. $6,037 — there is no right to counsel for the property owner. Seizures can be as small as $100, and if a property owner can even afford an attorney, it is hardly worth it to hire one to recover a couple hundred dollars. Consequently, nearly half of asset forfeiture cases end in default with funds or proceeds going to the seizing law enforcement agency, but this number varies by county.

Texas Appleseed seeks to limit the abuses that Texas’ current civil asset forfeiture laws allow and enable. Some sensible solutions include:

• Eliminating civil asset forfeiture in favor of criminal asset forfeiture only.  When a state abolishes civil asset forfeiture and replaces the practice with criminal asset forfeiture, the property is not the one being charged; the alleged wrongdoer is. This means the property owner must first be convicted of a crime and their property must then be tied by clear and convincing evidence to the criminal activity for forfeiture to occur.  This puts the responsibility on the government to establish guilt rather than on the owner to establish innocence, and allows for law enforcement to mitigate real crime without harming innocent citizens.

• Requiring a criminal conviction prior to forfeiture (not seizure), in most cases. For states who have yet to completely eliminate civil asset forfeiture, there is a middle ground that still protects citizens from exploitation: requiring a criminal conviction prior to civil asset forfeiture.  Sixteen states have adopted this reform for all or most property, and this is the suggestion of HB 251, sponsored by Texas Representative Senfronia Thompson.
• Incorporating better reporting requirements to ensure forfeiture as a tool is consistently being used to prevent or stop criminal activity. Texas’ reporting requirements are unsatisfactory at best, and improving the transparency around forfeiture actions would be beneficial to citizens, law enforcement, and state government. One of the underlying factors to the continuation of abuses by civil asset forfeiture is that there is often not much available data to prove it, without extensive research of individual court records comparing asset forfeiture cases to criminal cases, if there are any criminal cases that correspond. In order to show that civil asset forfeiture is actually serving its stated purpose, reporting requirements must also include, for example, demographic data regarding the individuals from whom property is seized, criminal charges and cases associated with seizures and forfeiture cases, and what happened to all seized property (returned, sold, destroyed, etc.), not just forfeited property.
• Putting forfeiture funds and proceeds in a common statewide pool so that there are fewer incentives for abuse. It is critical to eliminate the potential for profit within civil asset forfeiture, as it serves as the primary incentive for abuse within the practice.  There are a number of options where these proceeds can instead be deposited and/or utilized instead of being used directly by the seizing entity. HB 251 proposes proceeds (after paying for appropriate expenses for things like storage of the seized property) be deposited into the county’s general fund, as done in Maine, Maryland, New Mexico, and the District of Columbia.