Connecticut Bans Civil Forfeiture Without Criminal Conviction
“Civil forfeiture is one of the most serious assaults on Americans’ private property rights.”
Civil forfeiture remains a controversial issue in America since it’s “a process by which the government can take and sell your property without ever convicting, or even charging, you with a crime.” The procedures are civil, which means defendants do not receive the same protections given to criminal defendants.
Connecticut has put an end to this procedure when the legislature passed a law that bans civil forfeiture without a criminal conviction.
The Law
Democrat Governor Dannel Malloy signed HB 7146 into law on Monday after it “passed both the House and Senate without a single no vote.” Forbes reported:
Under the new law, in order to permanently confiscate property with civil forfeiture, the property must be first seized in connection to either a lawful arrest or a lawful search that results in an arrest. If prosecutors do not secure a guilty verdict, a plea bargain or a dismissal from finishing a pretrial diversion program, the government must return the property to its rightful owner. With the stroke of a pen, Connecticut now becomes the 14th state to require a criminal conviction for most or all forfeiture cases.
“Civil forfeiture is one of the most serious assaults on Americans’ private property rights,” Institute for Justice Senior Legislative Counsel Lee McGrath said. “The bill is a solid first step to ensure that innocent people do not lose their property to this use of 17th Century admiralty law applied to the 21st Century war on drugs.”
It keeps the forfeiture process as a “civil procedure with a lower threshold of proof.” From Reason:
In many cases, the person doesn’t even need to be charged with a crime. Instead the property itself is accused of being connected to criminal activity, and the owner of the property must (if he or she can afford it) prove the property wasn’t purchased or earned as a result of illicit activity.
While asset forfeiture is sold to the public as a way of separating criminal masterminds from the rewards of their illegal behavior, it is often used to seize small amounts of money and assets from low-level criminals (or alleged criminals). In Connecticut, the median forfeiture amounts for the past couple of years totaled less than $600. As this infographic from the Reason Foundation (the nonprofit that publishes this site) notes, it often costs more to hire a lawyer to fight asset forfeiture than the value of the property being seized.
Bill Missing a Few Pieces
Reason points out that the Equitable Sharing program at the “Department of Justice will allow police to bypass these new restrictions.” Reason continued:
The “Equitable Sharing” program lets local law enforcement agencies partner with the feds on raids and other police actions. The police then route the forfeitures through the federal government instead of state courts. This allows police in many states to keep more of the property or assets (up to 80 percent) under looser guidelines than they would under their state’s own forfeiture guidelines.
Some states who have reformed their asset forfeiture laws—Arizona, for example, just this April—have structured their changes in such a way that police cannot simply bypass them by turning to the federal government. Unfortunately, that component did not make it into Connecticut’s law.
The state will still allow “police and and prosecutors to collect 69.5 percent of the proceeds from forfeited property.”
Connecticut agencies still have the ability to “spend forfeiture money without any public oversight or accounting, leaving both the public and lawmakers (who are supposed to control the power of the purse) completely in the dark.”
[h/t to @galtsgirl]
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Comments
I imagine the law enforcement agencies are not at all pleased. They will paint the governor with the anti-cop brush.
Yes. Yes! YES!
But why is this ‘state by state?’ Why is this not a clear violation of the 4th amendment of the US Constitution?
This seems like a slam dunk win for some legal eagle civil rights org, like the ACLU, to bring before SCOTUS and strike down this nonsense.
Can some lawyer type explain , please?
The ACLU only cares about things like crosses at federal cemeteries and nativity scenes in front of city halls. The actual suppression of civil liberties is not their forte.
The ACLU is a worthless piece of crap. You want the ACLJ!
It is not a clear violation of the Fourth or Fourteenth Amendments because SCOTUS rules some years back that it was not. The legal fiction is that the civil action is against the “property” — not the person. SCOTUS also ruled just a couple of years back in Kaley that a Grand Jury Indictment was sufficient due process in a criminal case for pre-trial asset seizure.
There is an old expression about the Supreme Court. They are not final because they are right. They are right because they are final.
A) It is a clear violation of the 4th
B) Thomas has stated several times that the issue should be “re-looked” by Scotus. It takes 4 justices to grant cert, and then you still run the risk of at least one and maybe 2 justices getting soft (kennedy and roberts)
C) double jeopardy – fed and state duel soveriegn is also a problem that Thomas has indicated his willingness to address
Joe, I agree with you. I think the cases were wrongly decided. But my vote does not count. I am not a member of the Supreme Court of the United States. Until they rule differently Courts are unfortunately obliged to enforce the case law.
I recall it was a rhenquist opinion that sanctioned the civil forfieture. Will need to confirm. One of the few decisions i disagreed with from Rhenquist
It’s not a violation of the 4th amendment’s ban on “unreasonable [..] seizures” because the seizures are not unreasonable; they’re always backed by warrants issued upon probable cause. But that’s a very low bar; that the government gets to keep the seized assets is constitutional only because it’s a civil process, not a criminal one, so the 5th & 6th amendments don’t protect the victim.
This isn’t a new thing; civil proceedings against assets goes all the way back to the same era that produced these amendments, and the framers seem not to have objected to it. They weren’t perfect, and didn’t foresee every abuse that would arise. Civil forfeiture wasn’t widely abused, at least on the current scale, until the 1980s, and had the framers of the Bill of Rights foreseen that they would surely have forbidden it.
Good. I find it incredible, absolutely incredible, that Congress and SCOTUS believe this is Constitutional.
4.The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[91]
5.No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[91]
Generally, politicians love the idea of free money that they can grab while pretending that they’re for “Law and Order!” in order to get votes. As far as the Judges and Justices who turn a blind eye – well, what can you say other than this issue is pretty convincing proof that they are all politicians at heart, too.
We are the sheep. Government see’s its primary job as sheering the sheep, and if they can do it in a way that only upsets a small number of sheep at any given time, they will do it. Always.
Legally, the way it is done in this case is that little phrase 3rd line from the end of # 5, “without due process of law.” Notice how there is no real firm definition of “due process of law” that you can pin down? That means it is whatever the Supreme Court says it is.
Which means that if the Supremes say that what you got qualified as “due process of law”, then government is authorized to deprive you of life, liberty, or property as they see fit, and it’ll be “constitutional”. In their eyes, at least.
Positive progress. But, we still have trial by press, and the preponderance of evidence standard, which may deprive a person of life, liberty, and the pursuit of happiness. Oh, and social justice, which is often selective, even arbitrary.
Good. This has been rife with abuse and needs to be enforced federally.
One down. Forty-nine plus one to go.
The loophole of going to the FEDS needs to be closed. You saw the abuses under Obama.
EVERYBODY WAIT A MINUTE. Before you all go celebrating this as a great stride forward, read the law VERY carefully:
If prosecutors do not secure a guilty verdict, a plea bargain or a dismissal from finishing a pretrial diversion program, the government must return the property to its rightful owner.
This bill does NOTHING to stop the abuse where a governmental agency may seize a home from a homeowner if it is alleged that their minor or adult child is dealing illegal drugs or potentially living at home where the homeowner knows nothing about the acts of the minor or adult child.
This bill is all smoke-and-mirrors. It changes the language, but the change is so superficial from a criminal law standpoint that it is irrelevant.
Anybody want to hazard a guess as to how many criminal charges end up in a guilty verdict, a plea bargain or a dismissal from finishing a pretrial diversion program?
I’ll give you a hint: It’s somewhere north of 98% of all charges. I can count on ONE HAND the number of criminal charges I’ve convinced the District Attorney of a region to dismiss outright without a trial in 5 years of practice, and fair warning, trial can be a dicey thing, so most defendants will plea, even if the state has a weak case.
Well, now EVERY criminal defendant in Connecticut needs to be on notice that a plea may result in you losing your house, your car, your bank account, or other items of value.
I TAKE IT BACK. They DID fix it. They changed the [is] to “was” not a defendant.
It’s just WAAAAYYYY down in the fine print under subsection E.
I do like that “personal liability” bit though for anybody holding the property found to NOT be of the defendant.
BUT deadlines are critically important. Fail to meet that appearance deadline for your property to be seized, and you’re screwed.
Otherwise, very happy about this.
While forfeiture was a good tool of justice, it is also a good tool of oppression. Too much so.
The way to stop crime is not by fascistic policing. It is by civil education of the young and their parents. remember how low crime was during the Great Depression. (No, not obama’s 8 year term – where the crime-rate was staggering – but during the 30’s.)
I really hope this spreads, one of the worst aspects of this is how it’s made “legal corruption” so easy to accomplish. Example – I live in East Texas. There’s a highway comes up from Houston, Hwy 59, which is infamous for being a conduit for drug shipments by the cartels to points up north.
So every few months there will be an excited news story about how some of the local police, after an anonymous tip, stop a car with hundreds of thousands of cash in the trunk. The drivers say they know nothing about it, they were just hired to transport the car, and with no drugs in the car they let them go. No one contests the seizure, and the police are overjoyed with the huge pile of loot that they can now use, since they’re going to keep it all.
Meanwhile, as soon as the police get off the road to go celebrate their new found wealth, 10 semi’s full of cartel goods go by on the exact same road, in broad daylight, and no one lifts a finger. And that’s how the drug biz works, and that’s how the cartels *legally* pay small town police departments to look the other way when the real shipments go by.
I’m cynical enough to think the car full of cash is the “toll” for letting those semis through.
“In many cases, the person doesn’t even need to be charged with a crime. Instead the property itself is accused of being connected to criminal activity, and the owner of the property must (if he or she can afford it) prove the property wasn’t purchased or earned as a result of illicit activity.”
More general violations of principles, than merely a violation of the 4th Amendment, is going on here.
Civil forfeiture is made under the rules of admiralty. For instance, ships were often seized because they were carrying illicit goods, or war materials for an enemy. The ship was charged with the crime, and its owner had to show that he was unaware of the illegal nature of the cargo in order to get his ship back.
There are two major problems with Admiralty. First and foremost, it does not belong upon the land, period. Second, if I am not mistaken, the States have no jurisdiction in admiralty, that was reserved to the federal government. In this regard, many federal courtrooms display a small replica oar (less common are the real thing) to signify their authority to hear cases in admiralty. The display partially satisfies the requirement to make the defense aware of the nature of the cause being tried. Many years ago in Providence, RI, a group of reporters was being given a tour of the federal courthouse there, and one noticed a miniature oar at the bench. She inquired about, and, astoundingly enough, the judge gave her a history lesson on that I thought was astonishing in its candor. (He related nearly exactly some of what I have related here.)
Aside from the presumption of guilt (as mentioned in the article) another major problem exists with admiralty (making it unsuitable for general use against State citizens with their constitutional protections) – If there is a jury, it sits only in an advisory capacity. Judges (chancellors, actually, if I recall correctly) can and have overturned “not guilty” verdicts (which are not really “verdicts”, just “suggestions”).
If you don’t believe this, then answer me this, “Under what other jurisdiction is guilt presumed, are inanimate objects the respondents, and does the court display a miniature oar?”
Nope. You are right and wrong.
First, “In Rem” jurisdiction has come down from admiralty law, but it’s been applied to “terrestrial law” for some time, whether rightly or wrongly. It’s kind of the concept that allows an abandoned (apparently) car to be towed off the public roads and impounded.
In admiralty law a vessel was considered a “person” (usually a “she”). It is common for a vessel to be “arrested” by any harbormaster anywhere in the world for things like not paying for fuel or repairs until the matter is settled. You can see why this was developed, and is a good idea, since vessels by their nature are very mobile and could evade due process.
Most (maybe all) states have their own admiralty laws. Additionally, every state has what is called “pendent jurisdiction”, allowing them to act on Federal admiralty (among others) law.
The Law of Unintended Consequences will strike.
In cases where Bob was driving to another state with cash to buy a car before, now the cops will have to charge and convict Bob before they can get their greedy hands on that money. So Bob is going to jail, his bail will be set waaay up there, and rather than face months of being subjected to criminal persecution… um, prosecution, Bob will be offered a plea deal. And in return, he will have a permanent conviction record, as well as losing the money.
The only way to really stomp on this kind of legal abuse is to make *all* confiscations/civil forfeitures go into the General Fund without the little gifts that flow back to the seizing officers like happens now. Gee, your police department seized ten thousand dollars from a used car dealer who may or may not have been laundering money. That’s swell. Now get your fingers out of it and give it to Uncle Sugar.
Civil forfeiture has been illegal in NM since 2015. Included is a ban on the federal equitable sharing program. Unfortunately, some cities like Albuquerque are pretending the law doesn’t apply to them because they weren’t specifically mentioned. These municipalities will stop at nothing to make sure they can pad their budgets and the victims are stuck trying to seek remedies through the courts.
Regardless of which Supreme says it’s OK or the rationale they employ, it is a gross and obvious affront to the idea of due process and the ideal of being secure in one’s property from the power of the government, barring a criminal conviction or tort judgment.
Even if you left a car parked on a roadway for a month, there is no justification for NOT being able to reclaim it if it’s been towed and you meet the criteria, which should never be too hard.
Merely walking around with a lot of cash is no evidence of any damn thing, much less a criminal intent.
This. I think the Supremes were right to rule that it’s constitutional, but it shouldn’t be. The constitution is good but it’s not perfect, and it ought to be amended to ban this.
I agree with you wholeheartedly. The Courts created a legal fiction in civil forfeiture cases that the action was against the property and not the person. Civil forfeiture laws remain enforceable because of the Supreme Court decision. it stands the notion of due process on its head. Any there was nary a whimper from the public. Instead there is insouciant focus on nonsense, such as whether aliens not in the United States have constitutional rights.
Getting seized property back is an uphill battle.