Daily Signal Op-Ed: At Odds With History: States Seize Control of Civil Asset Forfeiture

The Daily Signal today published an op-ed from Jenna Moll, Deputy Director at the U.S. Justice Action Network about reforming civil asset forfeiture processes. The piece highlights Supreme Court Justice Clarence Thomas’ recent statements casting doubt on whether current forfeiture practices meet the standard set by historical practice, and examines the progress being made at the state level to protect property rights.

Excerpts are below and you can read the piece in full here.

“Last week, in refusing to consider a civil asset forfeiture case on procedural grounds, Supreme Court Justice Clarence Thomas cast doubt that these practices could stand up constitutionally or be sustained by historical practice.

“We share his doubt. Civil asset forfeiture is a procedure where state and federal government actors seize property from private citizens under the suspicion that the property is somehow involved with a crime. Those citizens are rarely charged or convicted of criminal behavior, but the property is brought into a civil court of law, wherein the government must meet what is usually a low burden to “prove” that property’s guilt.

“Putting aside the issues with bringing criminal accusations into a civil court, an innocent property owner is forced to come into that civil court, often without legal assistance, and attempt to prove a negative—that their property is not guilty—against the full force and weight of a government agency.”

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“Fortunately, many states are leading the way to protect innocent property owners from this government overreach.”

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“In 2017, constitutionally-minded policymakers in several states are positioning themselves to be leaders on this issue, remaining faithful to the Founding Fathers by protecting their citizens’ property rights.

“Michigan, which raised the burden of proof required for forfeiture just two years ago, now seeks to move its forfeiture practices closer to a model that Adams would find constitutionally acceptable.

“Arizona is working to require a higher burden of proof for forfeitures, while retracting a particularly onerous and egregious quirk in its law that allows innocent owners to be held liable for the government’s attorney’s fees if they come to court and lose. Legislators in Pennsylvania, Texas, Idaho, and Tennessee all are considering reforming forfeiture laws.

“But there is far more to do.”