This commentary originally appeared in the National Review on September 14, 2015.
Last Thursday, the Sisyphean boulder of property rights and due process rolled downhill. SB 443, California’s attempt to summarily end civil-asset forfeiture and “equitable sharing” abuse, roundly failed passage in the State Assembly, 24 to 44.
Oddly enough, this was after a 31-to-1 vote in the Senate three months earlier. The only change to come about during the interim was the emergence of organized resistance on behalf of law enforcement and district attorneys.
Civil-asset forfeiture, the practice through which law enforcement takes permanent ownership of property not proven to be involved with a criminal offense, has come under increasing scrutiny in recent years. Outlets as diverse as Breitbart and The New Republic have excoriated the practice, highlighting how it functionally allows unaccountable bureaucrats to sidestep procedural safeguards and liquidate citizens’ property without a finding of guilt. Newsfeeds are replete with examples of abuse.
Forfeiture practices are further complicated with the existence of equitable-sharing agreements. Therein, state and local agencies partner with federal law enforcement, seize property, and proceed with the forfeiture motion through the jurisdiction with the least restrictive process, oftentimes the federal courts. The agencies then share the proceeds. This allows law enforcement to wholly sidestep any legal protections guaranteed by the state.
While former U.S. attorney general Eric Holder brought an administrative halt to a very minor subset of equitable sharing in January of this year, it would take only a small change of heart on the part of his successor, vocal forfeiture enthusiast Loretta Lynch, to completely undo his decision.
The failed California legislation is but one recent example of how lobby groups representing the pecuniary or labor interests of law enforcement stymie attempts at commonsense legislation. Theirs is not an irrational position, surely, as such reform stands to make it increasingly difficult to keep money flowing into an unappropriated (and in many states, unreported) slush fund.
The floor debate followed the standard script. Proponents of reform cited several cases of abuse, highlighted the troublesome incentive structure, and proposed a reform package requiring law enforcement to establish criminal guilt before taking permanent ownership of property. As under current statute, law enforcement would still be able to make evidentiary seizures of property and contraband.
The opposition kabuki was less predictable. Dissenting opinions ranged from claiming the bill went “a little too far,” to parroting the assertion of Lynch in her confirmation hearing that forfeiture “is a valuable tool” in crime fighting, to claiming that people who carry large sums of money are probably criminals. (It will be a difficult day when the first food truck or street vendor appears in California.)
Perhaps the most memorable detraction from the substantive policy argument was a claim that forfeiture is used to combat the criminal export of California marijuana to other permissive states in the nation, namely Washington and Colorado. While this argument is nonsensical prima facie — it makes little sense for one to bring their own sand to the beach — the proposed law would not at all impede law enforcement’s efforts to combat illegal-drug trafficking. Drugs could still be seized as evidence of the crime.
Conservatives and libertarians have uniformly called for the abolition of civil forfeiture. Liberals and progressives wish to see the practice ended as well. The vast majority of Americans want to see the practice ended. In fact, not one organization outside of those representing the direct beneficiaries of forfeiture advocate continuing the practice. Unfortunately, it seems that ideology, public preference, and the rule of law hold less sway in many statehouses than do motivated interest groups.
Certainly, our police and prosecutors must be adequately funded so they may protect our communities. But this must be done through the prescribed appropriations process, not through constitutionally dubious takings.
Derek Cohen is the deputy director for the Center for Effective Justice at the Texas Public Policy Foundation and its Right on Crime campaign. Follow him on Twitter at @CohenAtTPPF.