The Political Compromises of Forfeiture Reform in Minnesota

First, a word of congratulations is in order to Lee McGrath at the Institute for Justice, who has spearheaded the effort to reform asset forfeiture in Minnesota. As Bob Adelmann reports in the New American:

On August 1, citizens in Minnesota will rejoice that the police can no longer steal their property without their being convicted — or even charged with — a crime. Until then, Minnesota remains an upside-down world, as do many other states, where police can seize cash and property if they think that somehow that cash or property was involved in a crime. Until August 1, citizens who have had their property seized will still have to prove a negative: that their property was neither the “instrument” nor the “proceeds” of the charged crime.

Lee McGrath, executive director of Minnesota’s chapter of the Institute for Justice (IJ), which was instrumental in successfully pushing for passage of the bill, noted:

"No one acquitted in criminal court should lose his property in civil court. This change makes Minnesota’s law consistent with the great American presumption that a person and his property are innocent until proven guilty."

And indeed, the reforms that are now Minnesota law represent one of the most important current efforts to articulate and deploy fundamental protections for American property rights and liberty. Yet, even this important step did not come without reaching a compromise with the particular special interests groups invested in the revenue stream represented by expansive civil forfeiture laws. As Nicole Sims of think tank Minnesota 2020 notes:

In devising the final bill, its proponents made a compromise with Minnesota County Attorneys Association (MCAA) to allow civil forfeiture with the equivalent of a conviction in drug-related cases. Equivalents to conviction include an admission of guilt on behalf of the property owner, receiving a diversion or stay of a criminal sentence, or making a plea bargain that involves serving as an informant. Supporters also compromised on a provision that would have directed the proceeds from civil forfeiture toward the state’s general fund instead of law enforcement agencies.

While Feist acknowledges “the new conviction requirement is an important reform,” he notes that the ACLU plans to continue its work on civil asset forfeiture in the 2015 session. This includes pursuing a bill that would empower innocent owners to make claims on property when someone else’s activities result in its seizure. A bill to that effect was unsuccessful during this legislative session.

It will be instructive to see if changes to the law (which take effect on August 1st) result in fewer arrests, given allegations that civil forfeiture encourages policing for profit.

Reformers should take note here. The success of further forfeiture reform efforts in Minnesota and elsewhere hinge on drastically taming the aggressive nature of law enforcement lobbies, and in particular prosecutor's associations. Prosecutors hold a unique place in the asset forfeiture system: they are the agents responsible for processing and sanitizing the use of asset forfeiture as a revenue stream for their own departments and the other corporate entities of law enforcement.

Part of the issue is simply combatting the enormous practical political power that prosecutors hold within society and political systems as a result of their status and centrality to the judicial system. Reformers would do well to focus here on two objectives.

First, do the legwork to impeach and discredit the arguments mustered by prosecutors and law enforcement lobbies in favor of civil forfeiture; this may require extensive research not only into the revenue system of asset forfeiture, but also into the broader spectrum of law enforcers and prosecutors as they act under these incentive structures. Where public officials have financial incentives to limit the rights and liberties of the people they serve, abuses are inevitable and frequent.

Second, find allies within the field of law enforcement. These institutions are not monolithic, and there are people of integrity who attain the ranks of judges, prosecutors, and police. Indeed, finding and empowering the dissidents within law enforcement is perhaps the most valuable thing that any reformer could do. The best example of this is perhaps the organization Law Enforcement Against Prohibition, a group that has been of immense value to marijuana and drug policy reformers in multiple campaigns around the country.

Legislatures, indeed, are listening. In the last few years there have been reform efforts emerge in states like Tennessee, Minnesota, Utah, Georgia, California, and Texas (there are of course others, but this is a brief list par example). Yet few of these efforts have been successful in their initial stages, and while there is traction for further attempts, systemic reform is unlikely to happen without serious thought given to those opposing forfeiture reform.

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