Albuquerque Journal Editorial Board Calls for City Council to Modify Prostitution Law

The Albuquerque Journal Editorial Board published the following unsigned editorial on Nov. 27, 2013:

A court ruling that an Albuquerque ordinance allowing police to seize and keep vehicles used by suspected drunken drivers is unconstitutional should give city officials pause to reconsider their newly passed law that allows seizure of vehicles used in prostitution cases.

State District Judge Clay Campbell ruled the DWI seizure ordinance violates due process. He said that while the ordinance tells the administrative hearing officer to consider only whether the “(arresting) officer had probable cause to seize the vehicle,” it does not give an innocent owner – for instance, someone who had loaned the driver a car when he was sober – a “meaningful” opportunity to contest the seizure.

City attorney David Tourek says the city already is returning vehicles to innocent owners.

Faced with this legal setback, the City Council should revisit the “johns ordinance” that allows Albuquerque police to seize a vehicle used in a prostitution crime upon the arrest of a participant. The idea is to target johns, not just prostitutes.

A conviction isn’t required, but it should be. In the U.S. judicial system, people are still considered innocent until proven guilty, and they shouldn’t have to suffer a penalty until guilt is proven. Councilor Rey Garduño raised the point when he voted against this new ordinance. His concerns were that someone could be wrongly accused of a crime and, again, it’s possible the car used in the crime could be a borrowed one. Plus, regardless of status, a hearing on a seized vehicle costs $50.

This isn’t the first time a judge has smacked down a seizure program. A separate court ruling put an end to the Albuquerque Police Department and the Bernalillo County Sheriff’s Department seizures of cash from people arrested during traffic stops. The county had to cough up more than $3 million in damages and the city settled for $882,900.

Police may view forfeiture programs as a way to make a drunk or a john think twice before getting behind the wheel, but these tools should not be used without due process for all. Both laws should be repealed.

New Mexico's forfeiture laws are pretty bad. As the Institute for Justice notes

Even after a reform effort in 2002, New Mexico’s civil forfeiture laws still do not offer adequate protections for property owners.  To secure a civil forfeiture, the government must prove, by clear and convincing evidence, that property is related to criminal activity and thus subject to forfeiture.  This is a higher standard than most states but still lower than proof beyond a reasonable required to establish criminal guilt.  Moreover, in most instances, property owners have the burden of proof for innocent owner claims.  And law enforcement may still receive 100 percent of the proceeds from any forfeiture.

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