Why unlikely allies want to reform Oklahoma’s civil asset forfeiture law

Last week, Oklahoma Policy Institute participated in a joint press conference with Sen. Kyle Loveless (R-OKC), the Oklahoma Council of Public Affairs (OCPA), and the American Civil Liberties Union of Oklahoma. The topic was a new poll jointly sponsored by OK Policy and OCPA that found a large, bipartisan majority of Oklahomans favor reforming civil asset forfeiture laws to allow law enforcement to keep confiscated property only when a criminal conviction is achieved. Sen. Loveless is developing a bill to make this and other reforms to civil asset forfeiture in the coming legislative session.

This rare collaboration between OK Policy and OCPA is just one instance of a coming together of many progressive and conservative groups on this issue. Nationally, civil asset forfeiture reforms have been endorsed by organizations ranging from The Heritage Foundation and The Charles Koch Institute to the American Civil Liberties Union and the Center for American Progress. John Oliver even dedicated an episode to the issue.

So why has this issue united groups that rarely agree? Here’s some background on the civil asset forfeiture debate in Oklahoma.

What is civil asset forfeiture?

Civil asset forfeiture is a legal tool that law enforcement can use to seize property suspected of being used in or resulting from criminal activity. Under current Oklahoma law, the process does not require the property owner to be convicted or even charged with a crime for the property to be forfeited. If law enforcement seizes property based on suspicion that it is in any way related to illicit drug activity, then the burden of proof is on the original property owner to show that the property was not related to drug activity.

The law enforcement agencies are then allowed to keep and use the vehicles, money, or other property that they have seized. Ownership is often transferred to the district attorney’s office and then split between the district attorney and local law enforcement. Proceeds from forfeited property are supposed to be spent on enforcement of drug laws and drug-abuse prevention, though audits have found several instances of missing funds and suspect usage of property by Oklahoma law enforcement.

Who is affected by civil asset forfeiture?

Defenders of civil asset forfeiture say it is a necessary tool to combat large drug cartels. They point to examples where hundreds of thousands of dollars were found hidden behind firewalls or in hidden compartments within vehicles and claim that enhanced safeguards would prevent them from seizing this very suspicious money. However, an Oklahoma Watch investigation found that out of 8,480 cash forfeiture cases in 70 Oklahoma counties, “59 percent sought amounts of under $1,000, and 88 percent sought amounts under $10,000. The median amount was $801.” Another investigation by the ACLU of Oklahoma found that out of more than $6 million in cash seized in 12 Oklahoma counties, almost $4 million was taken without any criminal charges.

James Todd, a former Sand Springs police detective who is now an attorney in Oklahoma City, told Oklahoma Watch, “They aren’t taking drug dealers’ money … It’s gotten so easy for them that they’re taking any money they come across.”

Who is most vulnerable to civil asset forfeiture?

In a time when we are making more purchases using credit or debit cards or even with our smart phones, it still may seem strange for Oklahomans to be carrying around hundreds or thousands of dollars in cash that is not connected to a crime. However, Oklahoma has one of the highest percentages of unbanked households in that nation, meaning they do not have any checking or savings account at a traditional bank. A 2013 FDIC survey found about 1 out of 9 Oklahoma families (10.9 percent) were unbanked. Another 22.2 percent of Oklahoma families were underbanked, meaning they may have a bank account but still use alternative financial services like check-cashing services or payday lenders.

[pullquote]”They aren’t taking drug dealers’ money … It’s gotten so easy for them that they’re taking any money they come across.”[/pullquote]Among African-Americans in Oklahoma, more than 1 out of 5 families (20.9 percent) were unbanked, and another 46.3 percent were underbanked. In fact, just 30.0 percent of African-Americans in Oklahoma had full access to banking services, according to the FDIC. That’s a serious concern when it comes to civil asset forfeiture, because black drivers are about three times as likely to be searched during a traffic stop compared to white drivers.

Multiple reports have found that police often view carrying a few hundred or thousand dollars in cash as probable cause for seizure, even when no drugs are found and the driver has an explanation for the cash. When money is seized from individuals who are predominately low-income and unbanked or underbanked, they are also unlikely to have the resources or knowledge to challenge the seizure.

What does civil asset forfeiture mean for public safety?

Besides the damage to innocent Oklahomans who are the least able to defend their rights, our current civil asset forfeiture laws may also be distorting the priorities of law enforcement and damaging public safety. A local news investigation in Tennessee found that a drug interdiction task force was making ten times as many stops on the westbound lanes of I-40 than the eastbound lanes. The reason? Drugs more often came up from Mexico and went east, while the money from drug sales returned going west. Rather than stopping the drugs from entering communities, law enforcement was concentrating on the money, which they were able to make a profit from confiscating.

As John Malcolm, legal director of the Heritage Foundation, said during Oklahoma’s recent legislative hearing on civil asset forfeiture, “What began as a laudable means to an end has become the end in itself. Police, sheriff’s departments and prosecutors often end up having a significant budgetary stake in the outcome of forfeiture cases.”

Defenders of civil asset forfeiture have argued that it is a necessary tool in cases where criminals abandon property to avoid going to prison. In some cases this is undoubtedly true, but as the use of forfeiture has expanded, so has the risk that law enforcement is taking property from innocent Oklahomans and leaving them little recourse to get it back. The collaboration between groups with very different perspectives seeking to reform civil asset forfeiture has emerged because of the clear need for reforms to protect our rights as Americans.