In 2016, the New Hampshire legislature passed a law that prohibited police from confiscating property without a charge or conviction. Instead of using this process – which is known as ‘civil asset forfeiture’, police in New Hampshire can only seize property after the suspect is convicted or pleads guilty. While the policy decision was in the best interest of justice, the implementation left room for improvement. House Bill 1296 vastly improves the application of the policy by uniting two judicial tracks into one. By joining the criminal case with any seized asset, which might be forfeited, we can improve judicial economy and better protect innocent citizens from inappropriate seizures.
Asset forfeiture could be a useful tool in slowing criminal enterprises in the business of illegal drug distribution. Civil forfeiture in the United States, also called civil asset forfeiture or civil judicial forfeiture, is a process in which law enforcement officers take assets from people who are suspected of involvement with crime or illegal activity without necessarily charging the owners with wrongdoing. In order to get back the seized property, the owner(s) must prove said property was not in any way involved in criminal activity. As with many tools, it can be misused or abused by government employees. Civil asset forfeiture is a step too far and ripe for abuse.
It is worth noting that asset forfeiture could easily be considered a violation of both the 4th Amendment (which prohibits unreasonable searches and seizures) and the 5th Amendment (which allows the government to take private property for “public use” if the government provides “just compensation”), as well as one of the UN’s Universal Declaration of Human Rights (Article 11, innocence until proven guilty).
Currently in New Hampshire, there are three paths for property seized in relation to felony drug cases:
First, seizures are made in the state and prosecuted in state courts. Since we began our criminal asset forfeiture policy, the property seized is held (in most cases) until the criminal case is concluded. The forfeiture proceeds in a civil action only after the conviction (or plea). Note that this involves two cases (one criminal and one civil) that have a loose linkage.
The second and third paths both run through the Federal civil asset forfeiture/equitable sharing program. The bulk of these are seizures made by joint state-federal task force operations. These represent about 70% of seizures processed through equitable sharing and do not require criminal convictions and may not even involve a criminal charge. Notice that this bill has no effect on this large portion of seizures.
The other path through equitable sharing is by a process known as ‘adoption’. In this process, the asset is seized by New Hampshire law enforcement under state laws. The seized asset is then ‘adopted’ to the equitable sharing program and forfeiture is done in the federal system. This process circumvents our state’s policy requiring a criminal conviction. Instead of receiving 45% of the forfeiture upon conviction, law enforcement is incentivized to use the equitable sharing program and may receive up to 80% of the forfeiture in a case which lacks the due process protections of a criminal case.
House Bill 1296 doesn’t affect the vast majority of asset forfeiture cases, so concerns about harming budgets of law enforcement are unwarranted. Those cases that are affected by this policy assure that innocent individuals are not being caught up in a system which might unjustly take property without a conviction. Further, the resulting ‘revenue’ to police is not zero, but a reduction from 80% to 45% of the forfeiture.
This bill does add a slight burden to public defenders as they will be called on to include the forfeiture in the criminal cases in which the defendant is without funds to defend himself. This inclusion of the forfeiture defense will be a de minimis addition to those cases. There is little data available to show how few cases would be added. We do know that approximately 90% of such cases will be pleaded out and this bill allows forfeiture to be considered a penalty for the offense.
On the other side of the fiscal consideration is the savings to the court system. While, once again, there will be few cases going to trial, instead of two processes there will be just one criminal case with the forfeiture being part of sentencing in that case.
Most of our asset forfeiture bills start in the house judiciary committee where the committee members are very familiar with the issue. This is very much a bi-partisan issue strongly supported by most in the house. This bill started in the criminal justice and public safety committee where members were unfamiliar. The vote out of the committee showed a bit of concern from the Democratic members. While a debate was planned for the house floor, conversations with the Democratic members led by NH-ACLU eased their concerns. Ultimately, the bill passed on a voice vote with support from a strong majority.
While some take this legislation to be an assault on funding sources for police, I’m encouraged to see the support of the ‘Law Enforcement Action Partnership’. They clearly see that this bill has benefits to law enforcement and their efforts toward community engagement. We, the legislative bodies of government, are responsible for properly funding public safety. We should not put police in a position of seeking funding sources other than that which is budgeted.
HB1296 will improve judicial economy, enhance due process protections, and restrict circumvention of our criminal asset forfeiture laws. Savings in the judicial system will offset the minimal work added to public defenders. It will further assist law enforcement in their community relations efforts. The time is right to send this bipartisan bill to the governor for his signature.
Please contact your senator via phone and email and ask them to support HB1296 to support due process.
Sponsors: Rep. Michael Sylvia, Rep. Chris True, Rep. Norman Silber, and Rep. Glenn Bailey