Pubdate: Mon, 23 Mar 2015
Source: Baltimore Sun (MD)
Copyright: 2015 The Baltimore Sun Company
Author: Cara Sullivan
Note: Cara Sullivan is the director of the Justice Performance 
Project at the American Legislative Exchange Council and author of 
the report, Criminalizing America: How Big Government Makes a 
Criminal of Every American.


In August 2012, law enforcement stopped Mandrel Stuart, the owner of 
a small barbecue restaurant in Virginia, for a minor traffic 
violation. During the routine traffic stop, $17,550 that Stuart had 
earned from his restaurant and intended to use for supplies and 
equipment was seized.

Stuart was never charged with a crime and there was no evidence of 
criminal wrongdoing. He eventually got his money back, but since he 
lacked the cash to pay for overhead, he lost his business.

This was possible under a process known as civil forfeiture. In many 
jurisdictions, including Maryland, the law allows the government to 
seize private property if it can meet the preponderance of the 
evidence standard - that it is more likely than not the property was 
involved in criminal activity - without convicting or even charging 
the individual with a crime.

Law enforcement must maintain its ability to prevent criminals from 
bearing the fruits of illegal behavior, but innocent individuals 
should not be at risk of having their property seized This balance 
can be reached by eliminating civil forfeiture so that no individual 
can be ordered to forfeit their property without first being 
convicted of a crime.

Asset forfeiture laws are designed to protect the public and deter 
criminal behavior by eliminating some of the financial gains of 
crime. However, criminals are not the only ones who have their 
property confiscated. The Baltimore Sun previously reported that in 
2012, 48 percent of civil asset forfeiture cases closed in Maryland 
resulted in the government keeping property without a conviction. 
Eighty percent of people from whom the federal government seized 
property for forfeiture were never charged with a crime.

Civil forfeiture differs from criminal forfeiture, in which an 
individual must be convicted of a crime to lose his or her property. 
Unlike in criminal cases, property owners who cannot afford legal 
representation are not appointed counsel, and even for those who can 
afford an attorney, the value of the assets seized is often less than 
the cost of legal representation and missed work. Further, the burden 
of proof is on the owner of the property; to contest a seizure in 
Maryland, an individual must prove that the property was wrongfully 
seized or that the owner had no actual knowledge of the action.

As a result, many civil forfeitures go uncontested. Only one-sixth of 
seizures examined as part of an investigative series by The 
Washington Post were legally challenged.

Earlier this year, U.S. Attorney General Eric Holder made a highly 
publicized announcement that the Department of Justice would prohibit 
"adoption," a process in which state or local agencies seize property 
on their own and then ask the federal government to pursue forfeiture 
under federal law. This move, although a step in the right direction, 
only accounts for a small percentage of civil forfeitures.

To protect innocent Americans, policymakers should end the practice 
of civil asset forfeiture and require a criminal conviction in order 
to seize an individual's assets.

Short of eliminating civil asset forfeiture, increasing system 
transparency and accountability can provide safeguards against abuse.

Requiring law enforcement agencies to report data on seizures and 
forfeitures including the type of property seized, type of alleged 
criminal activity associated with the seizure, outcome of the 
criminal case and type of forfeiture procedure would bring 
accountability to the system.

These reforms would not remove the ability of law enforcement to 
seize ill-gotten criminal gains, and there is little empirical 
evidence that civil asset forfeiture has led to any reduction in 
overall criminal conduct.

Recent attention to the issue has led to proposals in a number of 
states, including Maryland.

Innocent until proven guilty is a bedrock principle of the American 
legal system.

The practice of civil asset forfeiture puts the right to be presumed 
innocent until proven guilty under assault by allowing the government 
to seize assets without convicting, or even charging, an individual 
with a crime.

It is time to end this assault on private property rights by 
eliminating civil forfeiture and bringing accountability and 
transparency to the system.
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MAP posted-by: Jay Bergstrom