Skip to comments.Don't Gut Civil Asset Forfeiture
Posted on 02/13/2018 10:09:35 AM PST by nickcarraway
By Brian McVeigh, Calhoun County District Attorney and president of the Alabama District Attorneys Association; and Dave Sutton, Sheriff of Coffee County and president of the Alabama Sheriffs Association
The Alabama Legislature is considering legislation that would change the way civil asset forfeitures are handled in Alabama. While well-meaning, some of the proposed changes would essentially gut what is an effective crime-fighting tool while making it easier for drug dealers and other criminals to hang on to their ill-gotten gains. The result would be more crime.
Unfortunately, several special interest groups have pushed a narrative that law enforcement - police, sheriffs and other authorities - are using civil asset forfeiture to unfairly take money and property from innocent Alabamians.
That narrative is false. Law enforcement uses civil asset forfeiture only to go after criminals, and state law already guarantees a process that is clear and fair for any person to challenge forfeiture in court. State law also provides built-in safeguards that protect the property of those who have committed no crime.
Dave Sutton.jpg Sheriff Dave Sutton c/o Dave Sutton
What is civil asset forfeiture and why is it necessary?
First and foremost, civil asset forfeiture is a crime-fighting tool. It is used to both deprive criminals of the ill-gotten gains of crimes like drug-dealing and attack the means by which these crimes are committed.
Consider, for example, money seized in a drug raid. Drug dealers trade in cash. Not only do dealers sell their drugs for cash, they also use this cash to buy drugs from their suppliers. Taking just a few thousand dollars in drug money off the street means there is less money to buy drugs and, thus, less drugs being sold.
But it is also important to prevent criminals from enjoying the fruits of their crime. We know drug money as well as cash derived from the sale of stolen goods are used to buy vehicles, guns, houses, jewelry and other items. It makes no sense to allow those who traffic in crime to keep the proceeds of their crimes. That would reward criminality.
It is critical that civil asset forfeiture remains a staple in the crime-fighting toolbox.
Here are some important facts to keep in mind.
Law enforcement and prosecutors can't go after property unless it can be shown it was used in a crime, was gained through criminal action or bought with the proceeds of a crime. Alabama law lays out a clear process that prosecutors must follow in going after a criminal's assets and an easy process for people to challenge the forfeiture.
More important, no asset can be forfeited in state court without the approval of a judge who weighs evidence both for and against forfeiture. Even in cases in which the property owner doesn't contest the forfeiture, a judge must still sign off on it. These proceedings begin with public document filings in circuit court and are disposed of in an open and public forum, with all proceeds subject to audit.
In fact, the procedures used in civil forfeitures are the same as those used in every civil lawsuit filed in Alabama. If there is something fundamentally wrong with the way we handle civil forfeitures, then there is also something fundamentally wrong with the way all lawsuits are handled.
Two changes to the state's civil forfeiture law are especially concerning to DAs and law enforcement. One would allow forfeiture only if there is a criminal conviction; the other would require that any proceeds from forfeitures go to the state's General Fund rather than local law enforcement. Though these changes may sound good, they would hurt public safety and make civil forfeiture less fair.
Requiring criminal convictions would result in more criminal charges filed and more people going to prison for lesser crimes. Consider pretrial diversion programs, such as drug court, for example. These programs allow people arrested for nonviolent crimes, including some drug charges, to go into treatment and other programs that keep them out of prison. Participants in these programs are not convicted of a crime, so under the proposed change, the only way to deprive them of their ill-gotten gains would be to prosecute them.
Meanwhile, sending the proceeds of forfeiture to the state's General Fund would result in fewer busts of drug and stolen property rings. What incentive would local police and sheriffs have to invest manpower, resources and time in these operations if they don't receive proceeds to cover their costs?
Prosecutors and law enforcement take issue with other parts of the proposed legislation. Alabama passed meaningful asset forfeiture reform in 2014 that strengthened safeguards and built on existing due process protections for criminal defendants, innocent owners and bona fide lienholders. We are always willing to work with lawmakers to strengthen Alabama's laws to fight crime and protect our citizens.
Does Alabama permit “civil asset forfeiture” prior to a criminal conviction for the crime producing the assets to be forfeited?
If so, Alabama civil asset forfeiture doesn’t need to be gutted; it needs to have a stake driven through its heart.
Protecting their trough.
Simple adjustment: The proceeds must go to an organization in no way affiliated with the law enforcement or government organization enforcing the forfeiture. It would need others to ensure the innocent are not snared. For starters: If there is no CONVICTION of a HUMAN BEING, there can be no asset forfeiture.
They should definitely "gut" pre-conviction civil asset forfeiture.
Last time I checked we still had a Constitution and it still had a 4th Amendment.
I can’t speak about Alabama, but for the NYPD, seized assets can be deposited into their pension fund.
If so, Alabama civil asset forfeiture doesnt need to be gutted; it needs to have a stake driven through its heart.
Correct. Due process is due process. There aren't supposed to be any shortcuts around the Constitution which make theft by law enforcement legal.
It should always err on the side of protecting the rights of the individual—even when it's "inconvenient" for law enforcement...
The thief protests.
AL.com = FAKE NEWS
AL.com = Liberal slants
All civil asset taking must be after a conviction and the trial must show the asset was probably purchased with illegal obtained money. Anything less is just theft under color of law.
Maybe these two should propose a new law where Alabama takes all property in the state, and people who can prove they are innocent of any crime can apply to have it returned.
anyone in favor of any form of this prior to a conviction is scum, a traitor and deserves to be beaten nearly to death with a ball peen hammer before being set on fore, the remains to be removed from the United States or its territories.
NO American can be in favor of this, in any way, shape of form; they are no countryman of mine and may they and their offspring be cursed forever.
Allowing the police to directly benefit from the taking of assets creates a clear conflict of interests.
This reform of the law is a much needed reform.
This is an absolute, shameful, despicable lie.
The "theory" sounds so wonderful, but in actual practice, civil asset forfeiture is an unsupportable Constitutional and legal monstrosity, and a moral and ethical obscenity. Law enforcement throughout the country, from the federal level down to the state and local, have been using it as a mechanism for legalized theft.
I believe perhaps the clever distinction trying to be made here is between “forfeit” and “seizure’. They can “seize” your property any time. It’s not considered “forfeited” until the person from whom it was “seized” has lost in the long, expensive, drawn out challenge. I could be wrong but...
Legislation like this is because Law enforcement agencies and prosecutors have abused the real intent of asset forfeiture laws.
Says the "Some Pigs Are More Equal Than Others" Chief of Revenue Collection Officers to the local Serfs.
Oh the horror, they might not be able to keep what they steal for themselves.
If I were King they would have to get a Conviction by Jury of 12 to seize anything.
That is a specious argument, mixing civil law with criminal law. They may call it "civil" asset forfeiture as they try to shrug off the limits placed on them by the Constitution, but make no mistake, "civil" asset forfeiture is part of a criminal proceeding. And no one should have their assets seized due to criminal activity unless they have been convicted of a crime.
I know it makes law enforcement's job more difficult but that is one of the effects of living in a free republic which limits governmental power.
Oh we should trust these creeps.
This illustrates that the corruption in law enforcement is widespread. It’s not just those at the top.
Let’s also officially legalize parallel construction too and go total police state. That’s a good crime fighting tool too.
Yes. All civil forfeiture is like that. The article is just a long list of lies. Civil forfeiture needs to be made explicitly illegal by Congress and ruled unconstitutional by the Supreme Court.
That this hasn’t happened despite the issue being in the news for many years is proof of the extreme corruption levels in modern America.
“Law enforcement and prosecutors can’t go after property unless it can be shown it was used in a crime...”
This is also part of the problem. Drive your car somewhere and get arrested? The police can seize your car and keep it even if the charges are dropped. That really happens too.
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