Wednesday, February 08, 2017

A tale of three reform approaches on asset forfeiture

The media's typical response to President Trump in these early days of his presidency has been to react to his outlandish statements while giving short shrift to related policy analysis. Let's not repeat that mistake here.

With the president weighing in on Texas asset forfeiture legislation, threatening to ruin the career of some unnamed state senator who supports it, it's worth taking a quick look at the three main, alternative approaches on forfeiture reform being suggested by Republican senators in Texas this session.

The bill implementing the idea that the Rockwall Sheriff decried to President Trump is SB 380 by Konni Burton, supported primarily by the grassroots conservative faction at the Lege and an array of conservative organizations. That bill would require a criminal conviction to forfeit assets. Most people assume the government can't take your money or your car in a forfeiture unless you have been convicted of a crime, so this bill represents the primary small-government reform on forfeiture and the starting point for any dialogue among conservatives. 

Sen. Don Huffines has legislation to increase transparency surrounding forfeitures (SB 662) and another (SB 663) which would have forfeiture proceeds go to the crime victim compensation fund instead of being kicked back to the arresting and prosecuting agencies. That's a great suggestion. If we're going to do forfeiture, at least take the profit motive out of it. That would remove financial incentives to file forfeiture claims and, odds are, as a result prosecutors would file fewer of them. In particular, you'd probably see less of the small-time workaday cases that fill most forfeiture dockets. (Typical state forfeiture cases are for just a few thousand dollars - often just a vehicle.)

Right now, forfeiture funds are treated as barely accountable slush funds for police and prosecutors which may be spent for any "law enforcement purpose." (Could that phrase be any more broad?) Separating seizure of assets from the spending of them would eliminate persistent perceptions of self dealing that shroud current seizure policies.

Finally, SB 401 by Joan Huffman would not require a criminal conviction for forfeiture, but would raise the burden of proof for seizing property from a "preponderance of the evidence" to "clear and convincing." Moreover, she would allow courts to reimburse attorney fees and related costs when they later rule that property was not forfeitable. And the bill creates procedures for when officers seize assets without a warrant, requiring them to get one post hoc within 48 hours or the property must be returned.

Huffman's bill has been referred to the State Affairs Committee, which she chairs, and one should never bet against a committee chair passing legislation out of her own committee.

Prosecutors view Sen. Huffman as their main ally and principle voice in the Texas Senate. In the past, she's been skeptical of asset forfeiture reform and was a key reason it did not pass in 2015. So for her to file a bill with even a few of the reform measures being pushed by the Texas Public Policy Foundation, the Institute for Justice, the Koch Institute, Heritage Foundation, etc., makes a significant statement. 

President Trump's off-the-cuff threats aside, with so many conservative senators seeking changes, odds are pretty good something will happen. Huffman's bill represents a floor for what can be achieved in the senate this year on asset forfeiture, Burton's bill the ceiling.

MORE: From the Marshall Project.

CORRECTION: This item originally said SB 380 required a conviction to "seize" assets; under the bill, a conviction would only be required to forfeit them. H/T: Michael Haugen.


Phelps said...

308 would be best. 401 might be an acceptable compromise, though. 663 is more just a "poison pill" but it is better than nothing.

My main concern goes along the lines of the RKBA fight in Texas. 633 is the old concealed carry law. 401 is the LTC law. 308 is true Constitutional Carry. If 633 passes, it will kick the can down the road 20 years. If 401 passes, the 308 might never pass.

Anonymous said...

We won. President Trump will make America great again.

Anonymous said...

4:08PM - Wonder if Trump was nominated by or on his 12th day in office for the Nobel Prize like his predecessor?

Phelps said...

Trump will do what is good for America. Texas will do what is good for Texas.

That is why we are supposed to have a Federal system.

Anonymous said...

Allowing the government to take anyone's property without a conviction is something I'd expect only from the old Soviet Union. It's not the USA I grew up in. Police are taking kid's life savings they need to go to college with. It's wrong.

Anonymous said...

anonymous 4:08
Great when and for whom?

Anonymous said...

As it relates to SB 401, how would that work exactly? A police department who believes they are justified to seize property would go before a judge to make their case? Much like getting a warrant? Would the owners of the property in question also be able to be present and make their case? (Unlike when the police seek a warrant). I'm neither an attorney nor an expert but without an upfront opportunity to make a defensive argument, raising the bar from preponderance to clear and convincing feels like semantics more than an actual protective improvement.

Anonymous said...

Aren't most crimes settled out of court to avoid overloading the court system? Crimes are often marked down to a lessor classification to get a speedy conviction.

The crime they committed is oftn much worse than what they are convicted of. We like to say, "oh, they didn't commit that crime," when we know they did but it was bumped down to get a quick conviction. Also, when I look at their three-page rap sheet I have an idea of who I'm dealing with.

Phelps said...

401 is short and easy to read, Grits encapsulated it pretty well. It wouldn't be like a warrant, it would BE a warrant.

So the procedure would be:

1) They now have to get a warrant within 48 hours, or you can get your property back with no further action than just saying, "gimme."

2) If they get the warrant, they now have to have the same proceedings as before, but now the standard is Clear and Convincing Evidence (meaning, this is clearly and plainly criminal proceeds or used in the alleged crime) rather than preponderance ("more likely than not" that the money/property was gained illegally.) It's a MUCH higher standard, just a smidge under Beyond a Reasonable Doubt.

Anonymous said...

Asset forfeiture was first used during the Reagan administration. When taxes are lowered on the rich then other means must be used to finance public services, infrastructure, etc. Now we have government theft, toll roads are becoming the norm, etc., etc., etc.

Remember, during the years of 1940-1970 taxes on the wealthiest of us were around 90%.

Anonymous said...

The strategy helped reconcile President Reagan’s call for government action in fighting crime with his call to reduce public spending. In 1989, Attorney General Richard Thornburgh boasted, “It’s now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation.”

Jennifer Laurin said...
This comment has been removed by the author.
Jennifer Laurin said...

Am I right in seeing that only Burton's bill would address federal equitable sharing? If so that's a big loophole - even in some of the audit bills, which seem to require reporting only of property seized "under this chapter." Arguably that doesn't extend to property seized not pursuant to state law. Thoughts here?