By Artur Davis

An unlikely dynamic has emerged in the Alabama Attorney General’s race:  three of the four Republicans running and both Democrats have acknowledged that one of the most powerful local law enforcement tools, the authority to confiscate property from citizens without charging them with a crime, raises serious constitutional questions.  Even the lone defender of the status quo, interim Attorney General Steve Marshall, concedes that the public is entitled to more information about how this process known as civil forfeiture works and what happens to cash and property once they fall into the arms of local authorities.

The political pressure in a red state is always to own the “tough on crime” mantle. But in this AG’s race, there is a rising awareness that defending the Constitution means property rights too. That should hearten both liberals and conservatives who fear the dangerous intersection of a built-in profit motive for local officers with a legal system that rubber-stamps civil forfeitures, and where many property owners don’t even have a lawyer.

It could also be another false dawn. A broad bipartisan consensus around forfeiture reform in the past legislative session slowly unraveled. A bill requiring criminal convictions for local forfeitures passed the Senate Judiciary Committee overwhelmingly: then it stalled under an aggressive counter-attack from district attorneys, sheriffs and police chiefs. Conservative advocates scaled their sights back to a bill that left civil forfeiture intact, but mandated sweeping new annual disclosures, including details about how much cash and what kinds of property are recovered by each local agency, how many forfeitures end up being connected to charged crimes, and how seized cash ends up being spent.

That compromise failed too, the victim of last minute maneuvers in the Senate that included an amendment dragging the ever-contentious fight over gambling into the debate.

These fractures aren’t going anywhere and will make meaningful action on forfeiture elusive. That is why two right of center groups, the Alabama Policy Institute and the Institute for Justice, are working to craft a solution reconciling law enforcement’s goal of getting the proceeds of crime out of the hands of lawbreakers with the values of due process.

The outlines of a path forward would look like this:

(1)    A criminal conviction should be the pre-requisite for the government acquiring private property through forfeiture.  But as Attorney General Marshall has pointed out, and I can attest as a former federal prosecutor, there are instances where large sums of cash are seized in valid searches but there is not enough evidence to responsibly charge any one person with a crime.

The practical reality though is that most of the time, the drivers or passengers or home owners say nothing or insist the cash is not theirs. Nor does anyone else come forward to claim the cash since volunteering to be a subject of interest to law enforcement is understood to be an unwise move.

In these situations, we believe the law should regard the unclaimed cash as abandoned property, a classification which would waive the conviction requirement. For prosecutors, this would improve the condition in current Alabama law that to be considered abandoned, property must be “intentionally relinquished”, a consistently difficult standard to satisfy.  (Prosecutors will still have to prove by clear and convincing evidence that the abandoned cash was connected to criminal activity).

(2) The 2018 reform bill was legitimately criticized for allowing too many different intervals for defendants or third parties to file challenges to a forfeiture. The windows for contesting a forfeiture should be more straightforward: defendants can file a claim to keep their property immediately after seizure, and the hearing will be held at the time of their first court appearance. For defendants who don’t file a pre-trial challenge, forfeiture will be determined in a single post-conviction hearing, similar to a sentencing. For third parties who claim innocent ownership, their claim may be filed at any time prior to a criminal judgment being entered, but not after: last session’s version would have allowed pre-conviction and post-conviction third party challenges.

(3) Local authorities don’t need and shouldn’t be given the perverse incentive of a profit motive to file forfeitures. The proceeds from forfeiture need to be deposited in a state fund, where legislators and state officials can exercise judgment over how forfeited funds can be deployed to actually fight crime.

Forfeiture done the right way punishes criminals without trading constitutional values like property rights and due process. It’s encouraging that in a law and order state, even most of the conservatives agree.

Former Congressman Artur Davis is a senior policy consultant for the Institute of Justice.


MORE ON API Blog

Monopoly and Locksmiths

  I love the game of Monopoly. The hope that I will land on expensive properties first, the poker-esque bluffing, and the art of deal-making with unsuspecting friends makes for a great game night. Even though I love Monopoly, I don’t always enjoy it. When I’ve missed out on important properties and am mortgaging the […]

A Review of: Toward a Truly Free Market: A Distributist Perspective on the Role of Government, Taxes, Health Care, Deficits, and More

Are you interested in learning about the principles of conservatism?  While the API team often focuses on policy matters and current events, we always remember the principles on which our foundation is built. One of those principles is free markets, the idea that businesses and economies work better with little to no government interference. In this […]

Our Elected Officials, a Mirror of Ourselves

“Who am I?” We are all, at some point, faced with this question. Some, more than others, have a considerably difficult time determining an answer (see Hugh Jackman’s character struggle with this question in Les Misérables). Although typically reserved for personal wrestling, this is a question Alabamians should be asking regularly, albeit in a different […]

MORE ON Civil and Criminal Justice

Civil Asset Forfeiture “Has Created Serious Problems”

By Jason Snead, Policy Analyst in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation This week I had the privilege of meeting with some of Alabama’s leading lawmakers and policy experts to discuss an issue of urgent importance: protecting the property and due process rights of Alabamians by reforming […]

Juvenile Justice: A Broken System with Harmful Effects on Alabama’s Youth

A fourteen year old shoplifts cologne from a local Macy’s with hopes to impress his crush. Lacking the skills of an experienced criminal, he gets caught easily. Although perhaps warranting a fine and community service, he is instead processed as a criminal defendant and placed in a juvenile detention center. Here, he crosses paths daily […]

Here in Alabama, the government can legally take your stuff (AND NOT GIVE IT BACK)

Along Highway 31 in Conecuh County, Alabama, lies a small town called Castleberry. Although the city boasts a population of less than 600 and a single caution light, it has its own police department. To fund itself, the Castleberry Police Department takes advantage of speeding passers-by and writes them tickets. Nothing to see here. In […]

MORE FROM Guest Author

Licensing away economic prosperity

By Allen Mendenhall Do you want to alleviate poverty in Alabama? Do you want to curb the power of special interest groups over government agencies? Do you want more affordable goods and services in basic industries? Do you want to help disadvantaged groups find good jobs and become productive citizens? Do you want to reduce the […]

Civil Asset Forfeiture “Has Created Serious Problems”

By Jason Snead, Policy Analyst in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation This week I had the privilege of meeting with some of Alabama’s leading lawmakers and policy experts to discuss an issue of urgent importance: protecting the property and due process rights of Alabamians by reforming […]

Pro-Life Values Should Go Beyond the Ballot Box

By Brooke Bacak Voters in Alabama have great concern for the unborn. After Tuesday’s special election, many feel anguish over the loss of a reliably pro-life Senate seat, which could affect federal judicial appointments over the next several years. Without judges who respect the right of states to regulate abortion, pro-life voters feel especially helpless […]