Congress Should Learn from States on Civil Asset Forfeiture

The Ohio Legislature recently joined the growing ranks of states to pass civil asset forfeiture reform. More than a year in the making, both chambers passed, by overwhelming margins, House Bill 347, which, in most instances, requires a criminal conviction for the state to permanently seize property from an individual.

Civil asset forfeiture is the process by which state and local law enforcement can seize property believed to have a connection to illicit activity. In the vast majority of states, as well as the federal government, the property owner doesn’t have to be arrested, charged, or even convicted of a crime. Property can be subjected to forfeiture based on a low evidentiary standard and, in a perversion of justice, the burden of proof falls on the property owner, not the government.

Under current Ohio forfeiture law, prosecutors need only show a preponderance of the evidence — or 51 percent likelihood that the government’s claim that the property is connected to illicit activity is true — to subject property to forfeiture. Law enforcement can keep up to 100 percent of the proceeds from forfeitures. According to the Institute for Justice, law enforcement agencies in the Buckeye State reported more than $23 million in forfeited property between 2010 and 2012.

Ohio isn’t alone in passing forfeiture reform. Earlier last year, New Mexico passed the strongest forfeiture reform law in the country, requiring a criminal conviction as a prerequisite to forfeiture. Florida, Michigan, and Montana have also passed forfeiture reforms that protect the rights of innocent property owners.

Sadly, the building momentum in the states hasn’t caught on in Congress. The last major overhaul of federal civil asset forfeiture laws happened in 2000, with the passage of the Civil Asset Forfeiture Reform Act (CAFRA). While initially protective, the bill was watered down during the legislative process, making its protections for innocent property owners far less meaningful.