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Another Voice: Misuse of civil forfeiture threatens property rights

By Ronald Fraser

James Madison declared way back in 1792 that in America, “Government is instituted to protect property of every sort … [securing] to every man whatever is his own.” That was then.

Today, according to a new Institute for Justice (IJ) report, “Civil forfeiture threatens the constitutional rights of all Americans. Using civil forfeiture, the government can take your home, business, cash, car and other property on the mere suspicion that it is somehow connected to criminal activity – and without ever convicting, or even charging, you with a crime.”

The report goes on to say that New York’s civil forfeiture laws are not the nation’s worst, but the state collects more forfeited property proceeds by teaming up with the federal government than all but two other states.

To forfeit property suspected of involvement in a crime, law enforcement officials in most other states need only show that the property was used in a crime based on “a preponderance of evidence” – meaning the government’s case need only be slightly better than the property owner’s. This low level of proof favors the government, not the property owner.

In New York, however, in drug-related cases, before property can be forfeited, the government must first prove that the property owner committed a crime with clear and convincing evidence – a higher standard of proof than in most other states.

Converting private assets to public use is a big business in New York. Teaming up with property forfeiture programs run by the federal Departments of Justice and Treasury – in effect loopholes that allow state law enforcement agencies to sidestep strict state laws – New York law enforcement agencies raked in more than $613 million from the sale of forfeited property between 2000 and 2013.

Under New York’s statutes, law enforcement agencies are allowed to keep, for their own use, up to 60 percent of the proceeds from the sale of forfeited property. Using these laws, between 1997 and 2013, New York law enforcement agencies collected an additional $367 million in forfeited property proceeds.

These are powerful incentives for agencies to aggressively seize private property in anticipation of padding their bottom line.

Good news: Due to federal budget cuts, these federal loopholes have been, perhaps only temporarily, closed. To protect New York property owners, the IJ recommends permanently shutting down this law enforcement gravy train.

Until law enforcement agencies stop financially gaining from their seizures, New York citizens will continue to wonder why their police forces conduct drug raids. Are they to rid the town of drugs or to fatten police department budgets?

Ronald Fraser, Ph.D., writes on public policy issues for the DKT Liberty Project, a Washington-based civil liberties organization.