By Rep. Mike Sylvia For The Liberty Block
Civil asset forfeiture became a popular method of fighting the war on drugs over the past few decades. The thought was to cut off funding for drug dealers. As best I can tell, the drugs are winning the ‘war on drugs’, and citizens have become collateral damage in this battle. Once law enforcement got a taste of this highly lucrative scheme, they were hooked. While drugs were moving east, money was moving west. Police found it to be more beneficial to work the westbound traffic. The drugs made it to their destination ensuring a return trip of cash to the suppliers.
Innocent citizens would often get caught in the trap. Simply having cash made you a suspect. Once ensnared, you would have to prove that your cash was not related to a crime. How much more would you need to spend to get a lawyer to get your cash or car back? Often it was not a battle worth fighting.
When your property is seized by law enforcement, it is still yours, you just can’t access it. ‘Forfeiture’ is the legal process to remove ownership of your property and grant ownership to another party, which in this case is the government. For your convenience, the police have a nice easy form you can fill out and be on your way; without your property, having given over ownership to the agency. Because the government has not technically taken permanent ownership of your property, they do not even need to charge you with a crime to confiscate it, let alone convict you with a crime.
In 2015, New Hampshire Representative Dan McGuire introduced HB636, a bill that would end civil asset forfeiture in New Hampshire. Through a long series of negotiations and compromises, the bill was incorporated into SB522. [sidebar on committee of conference] The bill passed in June of 2016 and was signed by the governor. The current law in New Hampshire requires a criminal conviction in most cases prior to the forfeiture of seized assets – by state and local law enforcement.
While a criminal conviction is now required prior to initiating the judicial forfeiture process, there is a path around the state law which involves a Federal program known as ‘Equitable Sharing’. This ethically questionable program allows state seizures to be ‘adopted’ out to federal civil prosecution. This allows for a forfeiture without a conviction as required for state forfeiture. In return for ‘adopting’ the case, the Federal government takes 20% of the asset value, and the police department involved in the seizure gets 80% of the proceeds/value of the seized asset.
Having added the due process protection found in the state’s criminal forfeiture law, the Attorney General’s office started poking around looking for loopholes. They attempted to leave seizure in limbo while they continued an extended investigation.
In order to remedy the issues associated with ‘policing for profit’ and to enhance due process protections, Rep. Sylvia, Rep. Edwards, and Rep. McGuire introduced HB 1192 for the 2020 session. This bill would require forfeitures below $100,000 to take place in the state court system, rather than in the federal courts under the federal ‘equitable sharing’ program.
By setting a $100,000 hurdle prior to allowing adoption to the federal program, most seizures would come under the state’s more rigorous criminal forfeiture standard. It is more likely that seizures above $100,000 do actually involve large scale criminal enterprises. The majority of seizures are below $10,000. At that level, there is little incentive to hire a lawyer to fight a federal taking.
“This bill is an important step to ending policing for profit in New Hampshire. Not only does this bill fix a loophole that allows the State to hold property indefinitely, but it also helps make sure that state officials do not circumvent New Hampshire’s laws governing forfeiture that are more protective of property rights than the federal process.” said Gilles Bissonnette, ACLU-NH Legal Director.
HB 1192 also tightens the requirement for the prosecution to file their intent to seek forfeiture within 60 days of the seizure. It is unfortunate that the clear language of the current law is not respected by those seeking to take easy money from innocent people.
If you support this bill and/or oppose police taking property from innocent people, contact your legislators and ask them to support HB1192 and email the House Judiciary Committee and tell them to recommend that the bill be passed.
UPDATE: Rep. Sylvia and 6 other Representatives have sponsored this bill again as HB331.
UPDATE: The Senate has killed this bill.
This article does not necessarily reflect the opinions of The Liberty Block or any of its members. We welcome all forms of serious feedback and debate.