Wednesday, March 25, 2015

New Mexico will require criminal conviction for asset forfeiture, will Texas?

Some folks at the Texas capitol considered state Rep. David Simpson and Sen. Konni Burton radical for filing legislation (here and here) which would effectively end civil asset forfeiture, requiring a criminal conviction before the state could seize someone's property. To put matters in perspective, though, see Radley Balko's report that in New Mexico:
The state Senate has just passed a sweeping bill that would virtually eliminate the practice of civil asset forfeiture and on this issue leave New Mexico as the most Fifth Amendment-friendly state in the country.

The bill would basically require a criminal conviction before police can take property associated with a crime. “Civil” asset forfeiture, by definition, allows law enforcement to seize and keep property without a criminal conviction. It often puts the onus on the property owner to “prove” that he or she obtained the property legitimately, or that it wasn’t used for criminal activity.

The bill was supported by the American Civil Liberties Union of New Mexico, the conservative think tank the Rio Grande Foundation, the Drug Policy Alliance and the libertarian law firm the Institute for Justice (IJ). In an e-mail, Peter Simonson of the ACLU-NM writes, “The sponsor was the Republican chair of the House Judiciary Committee and the bill had strong bipartisan support throughout the legislative process, passing both chambers unanimously.”

The bill was even praised by New Mexico resident Brad Cates, who headed up the Justice Department’s forfeiture office during the Reagan administration, the era when the more odious practices began.
See Grits recent coverage of Texas forfeiture legislation and a Texas-specific example of conservative support for reform on the issue that tracks Balko's national perspective.

Simpson's marijuana proposal - treat it like tomatoes - qualifies as radical. His proposal on asset forfeiture - that the government shouldn't take a man's property unless it convicts him of a crime - is common sense, Reaganesque conservatism for the working man.

Requiring a criminal conviction before one's assets can be seized is the kind of thing where, when you describe it in public, people respond, "isn't that already the law, already?" And when they learn it's not, nearly everyone thinks it should be. It's only prosecutors and law enforcement insiders who want forfeiture applied to people who the state cannot prove are criminals. And their support stems primarily from the fact that they're the ones who will get to spend most of the seized money.

14 comments:

rodsmith said...

this right here is what made the civil asset law illegal on it's face.

" “Civil” asset forfeiture, by definition, allows law enforcement to seize and keep property without a criminal conviction. It often puts the onus on the property owner to “prove” that he or she obtained the property legitimately, or that it wasn’t used for criminal activity."

sorry but under our constitution in any conflict between the state and a citizen the burden of proof is ALWAYS on the state.

Anonymous said...

The bill was supported by the American Civil Liberties Union? Well that tells me all I need to know.

mike bowers said...

Lets keep our heads in the sand, boys. Much safer that way. For a while at least

Anonymous said...

While I am not nor have I ever been a big proponent of the ACLU, I do agree it's about time that Texas came clean and lived up to the adage of innocent until proven guilty. Texas, like too many other states has seized property of the innocent, and never returned it after it was found that the person was innocent. This bill is long overdue.

Michael Lowe said...

Here in Dallas, where we've seen 3 independent audits of the Dallas County DA's forfeiture funds gear up in the past 6 months, it doesn't seem like a big jump to argue that following New Mexico's lead is a good idea.

I just recommended we do this yesterday in my own post -- follow New Mexico's example -- if not outlawing forfeiture across the board here in Texas.

Why? Not taking someone's property unless and until they are convicted seems pretty logical in my book.

Also, the wealth stacking up in these forfeiture funds is such a huge temptation to county prosecutors.

Example (besides Watkins): the county prosecutor who pled guilty to federal felony charges after he got caught misusing forfeiture funds and as part of the plea deal, agreed to return over $2 MILLION that he'd grabbed out of the county goodie bag.

For more detail, including my take on the inadequacy of pending Texas forfeiture legislation, see my blog post yesterday: Dallas D.A. Forfeiture Funds: The Temptation of All That Stuff and the Craig Watkins Scandal.

http://www.dallasjustice.com/dallas-d-forfeiture-funds-temptation-stuff-craig-watkins-scandal/

We're still waiting for the other shoe to drop up regarding former D.A. Craig Watkins' reign over the forfeiture funds here....

Regards,
Michael Lowe, Dallas Board Certified Criminal Defense Lawyer

Anonymous said...

Sorry guys but the bill makes perfect sense. who gives the state to just take your property because one of their officials "think" it was obtained illegally? The state of Texas needs to learn how to respect the Constitution and not honor just the laws that benefit the state.

Anonymous said...

Sorry guys but the bill makes perfect sense. who gives the state the right to just take your property because one of their officials "think" it was obtained illegally? The state of Texas needs to learn how to respect the Constitution and not honor just the laws that benefit the state.

Anonymous said...

Ok. What about eminent domain? Oh right, protect the assets derived from criminal activity but allow the taking of someone else's without their consent for the 'public good."

ashelton3 said...

I was stunned by this news. Seizing a person's assets before conviction is flat out wrong.

Anonymous said...

Would be interesting if they State prosecutors would apply civil forfeiture to all DWI convictions. Convicted of DWI? Take their cars.
That would suck.

Anonymous said...

Vehicles are routinely forfeited in felony DWI cases. The way to get a felony DWI is to drive drunk with a child passenger, drive drunk 3 or more times, or intoxication assault/manslaughter if you cause a drunk wreck that results in serious bodily injury or death. So yeah, nobody is crying over a forfeited vehicle in those cases because we have all been trained to believe that drunk driving is the worst thing ever.

Anonymous said...

There is a very simple solution to all this: change where the money goes. Prosecutors get zero, law enforcement 10 or 20%, the rest goes to a food bank or homeless shelter.

Anonymous said...

No one's talking about protecting assets derived from criminal activity. In fact, they're saying that if someone is convicted it's okay to take their property.

What this law is about is not taking property from people who haven't been convicted of anything. In other words, protecting the property of non-criminals. I'm not sure why anyone would be against that.

rodsmith said...

I have an even simpler solution. treat them like any other thug with their hand on your money or property. Shoot their ass and then worry about what they were wearing.