It’s time that the state of Alabama and it’s legislature take a long hard look at civil asset forfeiture reform. The libertarian in me says that the only way somebody’s property should be forcefully taken from them by government agency is after they have been convicted of a crime, and the government has proven that the property that they are trying to take was either the fruits of that crime or used in that crime. However, the Alabama legislature would receive a lot of pushback from law enforcement agency throughout the state if they tried to make that the standard. That does not mean that civil asset forfeiture has not become a means of generating revenue for a law enforcement in the state.
Please do not misunderstand me. This isn’t about defunding the police, on the contrary it’s about properly funding the police from proper funding sources.
Far too often, law enforcement agencies will seize property under civil asset forfeiture laws because they know that the owner of that property does not have the means to fight back in court to keep their property. in many cases the value of fighting the system is more than the value of the property, so many people decide that it’s not worth fighting for the property if it’s going to cost them more in the long run. That doesn’t mean any improper seizure of property under the civil asset forfeiture laws is right, it just means that we live in a practical world not an idealistic one. many law enforcement organizations in this state in this country understand this and they use it to their advantage.
There is one simple reform that can be included in a package of reforms that would change the calculus of law enforcement organizations and other government entities when it comes to civil asset forfeiture. That simple reform is including a loser pays clause in any reform package to civil asset forfeiture. Simply put what doing this would do is ensure that if a property owner decides to fight an asset forfeiture in court, and ultimately a successful, the law enforcement organization attempting to seize the property under civil asset forfeiture laws would be required to pay that property owners legal expenses for fighting that forfeiture in court.
The reason why this would change the calculus of law enforcement agencies when it comes to civil asset forfeiture is because they would start taking special care to ensure that they can meet the already low bar that it takes to successfully execute a civil asset forfeiture before they actually try to do so, cuz otherwise it will actually take money out of the budget of the law enforcement organization. Right now, that burden is on the property owner. Which goes against the legal principle in our justice system that you are innocent until proven guilty by whatever standard is applied.
More lawyers, and more legal organizations, would end up taking up the cases where the law enforcement agency has a very weak case or they feel they don’t meet the already low bar for the civil asset forfeiture on contingency, because if they’re confident they can win, that’s an almost guaranteed payday for them. This would make the process of civil asset forfeiture infinitely more difficult, especially considering that they would actually face an adversary that is schooled and knowledgeable in the law in front of the judge.
The prospect of having to deal with more contested civil asset forfeitures in front of judges would prompt law enforcement agencies throughout the state to actually implement an administrative solution for property owners that feel that their property was inappropriately seized buy those organizations. For example, if your local police department pulls you over and the officer thinks that your vehicle was purchased with the proceeds of drug money, that officer can impound your vehicle. Right now, because of impound fees and towing fees and other fees and fines associated with law enforcement, that law enforcement agency has zero incentive to work with you to allow you to get your property back in a timely manner. If you showed up to the police department with five years worth of tax returns and bank statements showing not only that you make enough money to be able to purchase that vehicle, but also that you’ve purchased that vehicle with cash or financed it, if they know they face the prospect of facing you in courtand that you have a high probability of successfully keeping your property, and they have to pay your legal fees, they actually have an incentive to work with you administratively to resolve the seizure outside of court, and many law enforcement organizations will do so.
This one simple reform has the ability to take a very effective law enforcement tool that was designed to curtail crimes like drug trafficking and human trafficking that is increasingly becoming misused and in some cases abused, and bring it back to its original intent and its original effectiveness.