New Mexico Legislature Tames Civil Forfeiture Laws
Policing for profit just got a lot harder.
Civil forfeiture is a huge problem in America. How could it not be? Any policy written to allow law enforcement agencies to hold property responsible for a crime that may or may not have been committed by its owner is eventually doomed. Police have used civil forfeiture procedures to seize millions of dollars worth of cash and property in places like Philadelphia and Michigan, and citizens have been largely powerless to stop it.
Federal and cross-country reform efforts have been slow-going, but the New Mexico legislature has passed groundbreaking legislation that will dramatically cut down on the problem of “policing for profit.”
Cato explains how the bill—if signed by Republican Governor Susana Martinez—will make the law more fair towards property owners:
Among other things, the New Mexico bill requires a criminal conviction for forfeiture actions, bolsters the “innocent owner” defense by requiring that the owner know that his/her property was being used illegally, requires that all forfeiture proceeds be deposited into the general fund rather than into the seizing agencies, and limits the ability of state and local law enforcement agencies to circumvent state law by utilizing the federal equitable sharing program.
This is huge.
Last time we checked in with New Mexico, their standards governing civil forfeiture were beyond wanting:
Even after a reform effort in 2002, New Mexico’s civil forfeiture laws still do not offer adequate protections for property owners. To secure a civil forfeiture, the government must prove, by clear and convincing evidence, that property is related to criminal activity and thus subject to forfeiture. This is a higher standard than most states but still lower than proof beyond a reasonable required to establish criminal guilt. Moreover, in most instances, property owners have the burden of proof for innocent owner claims. And law enforcement may still receive 100 percent of the proceeds from any forfeiture.
In 2003 alone, law enforcement officials in New Mexico seized almost $4 million in suspected drug money alone. The problem? The standard used to initially confiscate the property—a sniff test by a drug dog—may not be as foolproof as they would like us to believe:
Scientists, in studies stretching back to 1987, have consistently found that a third to 97 percent of all bills in circulation are tainted by cocaine. The latest study, presented in August 2009 to the American Chemical Society, found cocaine on 90 percent of 234 banknotes from 18 U.S. cities. The findings, arrived at by means of a new method of gas chromatography, confirm numerous previous studies.
In 1987, a Drug Enforcement Agency scientist found that one-third of all money at the Federal Reserve Building in Chicago had traces of cocaine. The study recommended “that trace analysis of currency for general enforcement or seizure be stopped.”
The law enforcement community has yet to follow that advice. Judges, however, on occasion demand more than a canine sniff test to establish a drug connection. For instance, U.S. Supreme Court Justice David Souter has noted “the pervasive contamination of currency by cocaine,” as have many lower courts. Enough do not, so canines are still widely employed to conduct searches that are practically guaranteed to return a positive result.
It sounds unbelievable. It is unbelievable—and that’s why this bill was filed filed to stop it, and why so many legislators on both sides of the aisle chose to support it.
This is one of those rare, bipartisan moments when both sides come together for the common cause of liberty—and it actually works out!
You can read the bill here.
Need some comedic relief? Love him or hate him, John Oliver’s takedown of civil forfeiture laws is pretty fantastic:
Featured Image from the ACLU.
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Comments
This is a good impulse. Asset forfeiture law have been roundly and egregiously abused.
Reparations. Why is it so hard to proceed to the logical next step? A huge number of people have been done a huge injustice, and they should be made whole.
A great idea long over due.
A good step in the right direction. Let’s hope their governor does not veto it and that more states follow suit.
Ain’t “Unreasonable search and seizure” to be found in the Constitution somewhere???
Civil forfeiture is another idea that, maybe to some people sounded fair, or just, but it is nowhere near as stupid or unworkable as penalties for micro-aggressions.
A dog should not be grounds in and of itself to allow a search.
How can we know with any reasonable level of certainty that the dog has not been trained to alert at cues, perhaps even unintended cues, by the handler?
How often is the dog/handler team test in a double-blind manner and how accurate are they? Those stats should always be available.
The cleverness and eagerness-to-please of dogs should not be underestimated. If the horse Hans could do mathematical calculations, then a German Shepherd could probably solve the Schroedinger equation or send a suspect to Gitmo prison if he knew that an “ooh, aren’t you a good doggie!” would be his reward.
Exactly. It would be trivially easy to train a dog to “alert” on a subtle signal from the handler. He may or may not be a corrupt cop. It would be quite difficult to proof a dog off those subtle signals. How do you train against something you don’t know you are doing.
This has been demonstrated in double blind trials. The dogs tended, by a heavy margin, to alert of targets the handlers had been made suspicious of.
The courts give them way too much credence. You can’t cross examine a dog.
Good as far as it goes, but it really should also apply to fines if the object is to control policing for profit. Having the forfeitures go the the state is good, unless the state gets greedy.
Gov Martinez has strong ties to the law enforcement community so this isn’t a done deal.
New Mexico has a part time legislature. 30 day sessions on even number years, 60 days on odd number years. If Martinez does not act on this, it’s pocket vetoed and most likely won’t be brought back until 2017.
Here’s an idea. Use the forfeitures to help fund the public defenders office.