It is no surprise that President Donald Trump’s attorney general nominee is being opposed by Democrats. Surprisingly, U.S. Sen. Jeff Sessions' nomination has invoked the ire of conservatives like columnist George Will, too. Many conservatives have problems with Sessions' support for civil asset forfeiture. Unfortunately, Louisiana has civil asset forfeiture laws, and they are among the nation's worst.
Civil forfeiture allows law enforcement officials to confiscate and keep private property that they believe is related to a crime without ever charging the property owner. In fact, civil forfeiture can occur after the property owner is acquitted of the offense giving rise to the forfeiture.
The government does not have to prove its case by the “beyond a reasonable doubt standard” in civil forfeitures. The Louisiana Supreme Court has stated all the government has to prove in order to forfeit property is “that there was probable cause to believe that the property was used in connection with a crime.” To make matters worse, property owners do not have the right to an attorney in civil forfeitures. Hiring an attorney can be expensive, so civil forfeitures often go uncontested.
Civil forfeiture raises serious constitutional issues; nevertheless, courts have resorted to “legal fiction” in order to permit it. In civil forfeiture cases, the government charges the property itself — not the owner — with the crime. Charging inanimate objects with crimes seems absurd, but it happens and produces nonsensical case names like State v. 2002 Chevrolet Trail Blazer and United States v. Approximately 64,695 Pounds of Shark Fins.
Since 2000, Louisiana has collected more than $100 million from forfeiture. The money is not used fund schools and bridges. The money goes in the pockets of the agencies snatching it.
In Louisiana, the law enforcement agencies involved in a civil forfeiture keep 80 percent of the proceeds. This gives them an incentive to prioritize revenue generation over public safety, and numerous reports suggest police devote more resources to interdicting money than drugs.
The remaining 20 percent of forfeiture proceeds go to the criminal court fund. This is troublesome because courts are supposed to be neutral, yet civil forfeiture gives courts skin in the game. The money could impair the courts impartiality.
It is difficult to imagine why the Legislature thought placing forfeiture money in the criminal court fund was a good idea. However, the reason for directing forfeiture money to law enforcement was tactical: take drug dealers stuff and use it to wage the drug war. The Department of Justice called it “poetic justice.” Unfortunately, it has not worked. Even former directors of the Justice Department’s Asset Forfeiture Office admit “civil forfeiture is fundamentally at odds with our judicial system and notions of fairness. It is unreformable.”
Louisiana should abolish civil forfeiture and replace it with criminal forfeiture. Criminal forfeiture requires the government to convict a person of a crime before forfeiting property. New Mexico, Montana, and Nebraska are among the states that have recently adopted this reform. Requiring a conviction before forfeiture provides property owners with the full array of constitutional rights, like the right to counsel.
Significantly, shifting from civil to criminal forfeiture would not affect law enforcement's ability to seize contraband. The shift only alters what happens after the police have taken action. Transitioning from civil to criminal forfeiture only changes what the government must prove before permanently depriving people of their property.
The political left and right rarely agree, but they do on civil asset forfeiture. It needs to be eliminated. The government should not be able to strip any Louisiana resident of property without first convicting that resident of a crime.