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Michael Haugen | January 6, 2017
With Ohio Governor John Kasich’s signature of House Bill 347, the Buckeye State has become the latest, and the first of the new year, to significantly restrain the ability of law enforcement to take and keep private property without a criminal conviction via civil asset forfeiture.
Utilized in the modern era primarily as a way to divest criminal actors within the drug trade of their ill-gotten gains, asset forfeiture has since grown well beyond this relatively tailored and legitimate usage, as even innocent people—who often are never charged, let alone convicted, of a crime—have nonetheless lost their property in a process whose scope has swelled recently. Much of this expansion comes from the fact that, in civil proceedings, the alleged crime attaches to the property itself, not the owner. As such, this legal oddity allows forfeiture cases to advance with far fewer hurdles for governments to clear—most notably, the provision of an individual’s right to due process, or presumption of innocence.
Since passage in almost every state and the federal government of laws allowing for civil forfeiture, the practice has become quite lucrative for law enforcement agencies and prosecuting attorney’s offices nationwide. According to a 2015 Institute for Justice (IJ) report on forfeiture, the Department of Justice’s Asset Forfeiture Fund had $93.7 million in revenue from federal forfeitures in 1986. By 2014, these deposits to the fund had exploded, reaching $4.5 billion—a 4,667 percent increase. State-level forfeitures have grown significantly, as well. Between 2002 and 2013, annual forfeitures across 14 states more than doubled. Other states very likely saw similar growth, but with many lacking any sort of reporting requirement for law enforcement agencies, getting a detailed account of forfeiture activity is difficult and time-consuming.
Ohio had been one such state. Prior to HB 347, Ohio lacked comprehensive reporting requirements, as a 2012 law largely gutted a necessity for individual agencies to provide the state attorney general with annual forfeiture reports. This, coupled with other poor protections for property owners under state law, earned them a “D-” from IJ’s report. According to the limited amount of data available, the state forfeited $25.7 million between 2010-2012, averaging over $8.5 million per year. Further, joint federal/state investigations with the DOJ and Treasury—driven in large part by the presence of high-intensity drug trafficking areas in the state—yielded an additional $153 million to the state between 2000-2013, enough to rank Ohio 43rd in the country in equitable-sharing activity.
HB 347 figures to change much of this. In the future, in order for local or state agencies to forfeit property valued under $15,000, they will first have to secure a conviction in an underlying criminal proceeding unless property is abandoned or the individual has otherwise fled the jurisdiction. Additionally, local and state agencies are prohibited from pursuing equitable-sharing arrangements with federal authorities unless property is valued over $100,000, or is subject to federal criminal forfeiture.
Ideally, no such value thresholds would exist and convictions would be required in all forfeiture proceedings, no matter their proportion. However, as half of equitable-sharing cases, according to IJ, are valued at less than $8,500—and 93 percent at less than $100,000—HB 347 will cover the lion’s share of forfeiture at that level. It will nonetheless fall to a future legislature to carry the ball the rest of the way towards a total abolition of civil forfeiture in the state.
Beyond a conviction requirement within those thresholds, HB 347 also increases the standard of proof in civil cases from a “preponderance of evidence” to “clear and convincing” evidence. Additionally, the burden for establishing guilt now resides with government. Previously, individuals were forced to come hat-in-hand before authorities to establish their own innocence and seek recompense for their belongings. HB 347 flips this requirement back in its proper direction, forcing government to shoulder its heavy, constitutionally-commanded burden of proving its case against someone before relieving them of property.
As other state’s legislatures start coming back into session—looking at you, Texas—they would do well to draw on Ohio’s and others example. Fortunately, the dominos are falling nationwide, as more states are getting wise to the fact that they exist to safeguard citizen’s rights; rights that aren’t to be bartered away in exchange for easy, non-appropriated funds derived from constitutionally dubious takings.