This commentary was originally featured in The Hill on November 3, 2017.
The primary goal of conservative criminal justice reform is increased public safety with a secondary emphasis on fiscal savings. Where conservatives sometimes struggle with criminal justice reform is in the appearance of being soft on criminals or anti-law enforcement, and reform opponents seek to exploit this tendency.
Despite assertions, conservative criminal justice reform does not make the public less safe, and civil asset forfeiture reform surely does not endanger our police officers.
I am a retired police officer and former director of a police academy. I am also a second-generation police officer — my father served as the chief of police in the town where I grew up. I do not suffer from the lack of knowledge of what it is like to be on the front lines of law enforcement that some reform opponents use to characterize all reform advocates. I also have no shortage of unbridled affection and admiration for our police officers, relating to them more than any other group in our society. My position on criminal justice reform is informed by my experience as a police officer and the knowledge I gained on patrol and training police cadets.
Conflating civil asset forfeiture with criminal asset forfeiture is a common parlor trick used to confuse the general public. A criminal should not benefit from the fruits of his or her crime, or be allowed to keep the instruments of criminal activity. Once convicted of a crime, the forfeiture of these items is well warranted and productive. However, criminal forfeiture is not the target of reform efforts.
Civil asset forfeiture has no such conviction requirement, allowing the government to seize and repurpose items and placing the burden of proving the items were not used or gained through criminal activity. The government, with unlimited resources to prosecute such cases, needs to meet only a civil burden of proof (preponderance of the evidence in many states) if the owner challenges the forfeiture, and most do not.
Contrary to the picture some imagine of police seizing drug dealers’ boats, most forfeitures are of much smaller amounts of money, often less than what it would cost to obtain an attorney to challenge the forfeiture. A recent poll conducted by Right On Crime showed that 88% of Texans thought that the government should secure a criminal conviction before forfeiting property. This is a reasonable expectation. The government should prove criminal activity, in criminal court, before keeping property from a citizen. This is foundational to the concept of private property rights. Reasonable reform proposals also include commonsense exemptions to the conviction requirement, such as absconding criminals or abandoned property.
Arguments that reforming civil asset forfeiture endangers police officers by denying them body armor and necessary equipment are worthy of rebuttal. Law enforcement is one of the core functions of government and considered essential by even the most limited-government conservatives. As such, funding should be duly appropriated as necessary.
If there are truly jurisdictions that can find no other place in their budgets with a lower priority than the purchasing of body armor for its police officers, then those jurisdictions should reexamine their priorities, seek private funding, or even raise taxes. Those steps would at least be more transparent and equitable.
What kind of perverse system has civil asset forfeiture created where the continued existence of a core service such as law enforcement is wholly dependent on the continued criminal activity it seeks to quell? Fortunately, reliance on asset forfeiture as an essential funding mechanism is an exaggeration. Police officers will not go without body armor if civil forfeiture is eliminated, unless someone is seeking to make an irresponsible political statement by allowing it to happen in some particular jurisdiction.
Conservative reforms, like those started in Texas ten years ago, have resulted in lower crime rates and recidivism rates. Conservative reform is focused on non-violent offenders, not violent ones, and the reforms actually make more room in prisons to house the violent offenders we seek to remove from society.
Criminal justice reform and civil asset forfeiture reform are subjects worthy of debate and the public, as the biggest stakeholder, deserves an honest debate on the merits. These debates are occurring in state legislatures across the country, in Congress, and if Justice Clarence Thomas has his way, might find their way to the Supreme Court.
Most assuredly, our police officers deserve more than having the public’s concern for their safety manipulated to perpetuate bad policy.