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New Mexico’s HB560 – Property: Innocent Until Proven Guilty?

| March 16, 2015

Across the country people are becoming more and more aware of asset forfeiture and the conflict that it has with individual rights. Asset forfeiture – whether criminal or civil – is the process in which law enforcement is able to seize property suspected of being used in a crime. As shown in Right on Crime white paper by Derek Cohen, “Taking Contraband Without Taking Our Liberties: Civil Asset Forfeiture Reform in Texas,” the origination of the concept was noble; it was intended to force criminals to support law enforcement with the proceeds of their crimes. This prevented situations in which a drug dealer, for example, was able to keep the wealth that they had accumulated through their illegal acts. However, several changes to the structure of asset forfeiture have given it a more insidious nature.

Civil asset forfeiture now involves forfeiture before a conviction. It allows “accusations against property,” which in a civil case involves a much lower burden of proof. Often the individuals that are affected either won’t or can’t try to reclaim their property because the cost of doing so is more than the forfeited proceedings. Given that the funds from these seizures go to the general fund – which then provides funding for the law enforcement and prosecutorial staff involved in the seizures – there is a direct conflict of interest.

New Mexico has a bill meant to preserve the integrity of the process. HB 560 is intended to protect innocents against wrongful forfeiture. It requires a conviction before forfeiture of property, as well as requiring law enforcement to provide annual reports of the funds seized. This provides greater justice and transparency for New Mexico’s citizenry.

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DIANNA MULDROW is a graduate of the University of Texas School of Law, where she focused on criminal justice and education policy. She has interned in the Governor’s Office, for the Chair of the State Board of Education, and most recently at the Texas Public Policy Foundation’s Center for Education Freedom and Center for Effective Justice. She is now employed as a policy analyst for Right on Crime, focusing on juvenile justice. Muldrow has worked on many research papers and articles – for Texas and several other states – advocating for reforms in criminal justice that protect public safety in a cost-effective manner.

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