New Mexico stopped civil asset forfeiture abuse; Oklahoma can, too

Civil asset forfeiture is a legal tool that has come under increasing scrutiny in recent years. Under the current civil asset forfeiture laws in Oklahoma and several other states, law enforcement can seize and keep property suspected of being used in or resulting from criminal activity, even when the property owner is not charged, much less convicted, of any crime. Serious abuses of this practice have been documented in Oklahoma and nationally, and Oklahoma received a D- in the Institute for Justice’s (IJ) most recent state grades for civil forfeiture policies.

Sen. Kyle Loveless (R-Oklahoma City) introduced a bill last session to reform the civil asset forfeiture system in Oklahoma, and OK Policy joined with groups on the left and right in a broad coalition that supports reform. This year Sen. Loveless has come out with a modified proposal in response to feedback from law enforcement and others. If these reforms make it into law, Oklahoma would move from among the worst states on this issue to among the best, just as New Mexico did after they passed similar reforms last year. New Mexico received an A- from the IJ last year, the highest grade given to any state, up from a  D+ in 2010. They did this by getting at the fundamental drivers of abuses: the agencies’ financial incentive to forfeit property and the low standard of proof required to do so.

Eliminating Financial Incentives

Before New Mexico’s reform last year, law enforcement agencies in the state could keep up to 100 percent of the proceeds from forfeiture, just as Oklahoma agencies can do now. This gives those enforcing the law a clear financial incentive to overuse the practice.  In these times of fiscal stress at both the state and local levels, the appeal of this alternative source of revenue grows even stronger.

The financial incentive of forfeiture has also been shown to distort law enforcement’s activities in ways that go against their core mission of protecting public safety. For example, the Texas Department of Public Safety narcotics division ran into scandal when it was found they were concentrating interdiction efforts almost exclusively on southbound lanes. They ignored drugs going north into Oklahoma so they might seize and get to keep a portion of the cash coming out of Oklahoma.

From 2000 to 2014, Oklahoma law enforcement agencies received nearly $99 million from forfeitures. While officers in other states have remarked that these funds are “pennies from heaven” used for “toys” for police, agencies in Oklahoma appear to be more dependent on these dollars for basic operating expenses like salaries and facilities. Agencies here spent 70 percent of forfeiture proceeds on salaries and another 15 percent on facilities. Our share of asset forfeiture proceeds going to salaries and facilities was far more than the other three states for which data was available — and this raises clear potential for a conflict-of-interest if law enforcement knows their salaries may depend on seizing property from Oklahomans.

Sen. Loveless has proposed to fix this conflict with SB 838 and SB 1189, both known as the “Personal Asset Protection Act.” These reforms would send the proceeds of civil asset forfeiture to a revolving fund that will pay for drug interdiction, drug courts, and drug treatment programs. The money will still be used to help prevent drug crimes, but the moral hazard that arises from allowing a law enforcement agency to keep for itself the money that it seized would be eliminated.

Raising the Standard of Proof

The financial incentive for law enforcement agencies is made even more problematic by the ease with which property can be forfeited. Even before New Mexico’s reforms, that state required clear and convincing evidence connecting the property to the crime before it can be seized, a higher standard than Oklahoma’s “preponderance of the evidence,” essentially meaning belief that there is more than 50 percent chance that a violation of the law occurred. In both cases, the burden is on the owner to prove his or her innocence, which can require a great deal of money and effort that may be impossible for low-income and minority individuals who are frequently the targets of asset forfeiture.

Sen. Loveless’s reforms would require a criminal conviction and raise the standard of proof needed for forfeiture to clear and convincing evidence – the same standard required to remove children from their parents. The reforms include some exemptions to the requirement for a conviction, such as for criminal informants and those who have fled from justice, and nothing in the reforms would take away law enforcement’s ability to seize property with probable cause in the course of an investigation. Finally, the reforms would institute a timeline for charges to be brought against property owners and a timely return of property if the government doesn’t have enough evidence to prove a crime was committed.

Will reforms get a hearing?

In the current budget crisis, nearly all Oklahoma agencies are in dire financial straits, and Oklahoma law enforcement has reacted with harsh rhetoric against any attempt at reform. However, balancing budgets by seizing cash and property from potentially innocent Oklahomans is clearly an unacceptable solution to agencies’ fiscal problems. The civil forfeiture reforms offered this session would place Oklahoma go a long way toward decisively ending this troubling practice.

Unfortunately, Sen. Anthony Sykes, the chairman of the Senate Judiciary Committee where these bills have been assigned, has so far refused to give them a hearing. Unless Sen. Sykes changes his position or the Senate leadership move the bills to a new committee, the proposals by Sen. Loveless won’t even be allowed a chance to be debated. You can find and contact members of the Senate Judiciary Committee here. You can also sign up as a citizen co-sponsor of civil asset forfeiture reform by filling out the form here.