Governor Hogan, Civil Asset Forfeiture Is Inherently Abusive


Despite recent gains around the country, civil asset forfeiture reform suffered a setback in Maryland when Gov. Larry Hogan (R) vetoed a bill that would have placed restraints on the state’s civil forfeiture regime.

Civil asset forfeiture is a process by which the government is able to seize property (cash, vehicles, homes, hotels, and virtually any other item you can imagine) and keep the proceeds without ever charging the victim with a crime.  The bill, SB 528, would have established a $300 minimum seizure amount, shifted the burden of proof to the state when someone with an interest in the seized property asserts innocent ownership (e.g. a grandmother whose home is taken when her grandson is suspected of selling drugs out of the basement), and barred state law enforcement agencies from using lax federal seizure laws to circumvent state law.

In vetoing the measure, Gov. Hogan claimed that restraining civil asset forfeiture “would greatly inhibit” the war on drugs in the midst of a heroin epidemic and interfere with joint federal/state drug task forces. Gov. Hogan admitted that asset forfeiture laws “can be abused,” but that their utility outweighed the risk of abuse.

Each of these assertions is misguided.

Civil forfeiture reform would certainly make it more difficult for law enforcement to seize property from citizens not charged with crimes.  Indeed, that is the entire purpose of reforming the law.  Likewise, the presumption of innocence, right to due process, and warrant requirement make it more difficult for the government to prosecute people suspected of crimes.  Those checks on hostile government action exist because governments with unfettered authority to summarily plunder and punish tend to do just that, and the litany of civil forfeiture horror stories is proof.

Therefore civil asset forfeiture is not merely susceptible to abuse; civil asset forfeiture is abuse.  Under no circumstances should someone be forced to forfeit their money, property, or even their home to the government on suspicion alone. The “inhibitions” Gov. Hogan’s statement laments are in fact the most fundamental defenses for private property and due process in a country founded to protect them.

Governor Hogan’s appeal to the efficacy drug war is similarly misguided.  We’re told that the prevalence of drugs, especially heroin, in Maryland is reason enough to keep forfeiture laws lax.  Decades of a failed drug war have proven the inefficacy of asset forfeiture as a means of stemming the flow of narcotics, and continuing that failure is no justification for abolishing the due process and private property rights of people who aren’t even charged with criminal behavior.

Remember: even an outright abolition of civil forfeiture wouldn’t mean the police couldn’t seize property from drug traffickers; it would just require the state to prove its suspicions in court before it takes someone’s property.  Criminal asset forfeiture would remain available to law enforcement inasmuch as there is any legitimate law enforcement justification for seizing property.

Lastly, Gov. Hogan’s veto statement announces the establishment of a working group, made up primarily of federal and state law enforcement and prosecutors (with a single seat going to the public defender), to decide whether any change to forfeiture law “is warranted” to prevent abuse and ensure law enforcement can still fight the war on drugs.  Tasking the very people who profit from civil forfeiture abuses with deciding whether changes are warranted casts immense doubt on the possibility of meaningful reform.

SB 528 is already a compromise bill.  It doesn’t abolish civil asset forfeiture, as New Mexico did.  It merely raises the protections due to innocent owners and requires state law enforcement to use state laws instead of excessively permissive federal forfeiture laws.  If even that is too much for Governor Hogan to tolerate, it seems unlikely that a working group of police and prosecutors is going to suggest much in the way of meaningful reform.

Civil asset forfeiture reform is not a partisan issue.  New Mexico’s abolition of the practice resulted from a bill that passed unanimously through both houses of the legislature and was signed by Republican Governor Susana Martinez.  Legislation reining in civil forfeiture in Montana was authored by Rep. Kelly McCarthy and signed by Governor Steve Bullock, both Democrats.

This is not a case of Republicans versus Democrats.  It’s a battle between those who believe that due process and private property rights trump the revenue generation and administrative ease of the state and those who believe that those rights are acceptable collateral damage in the war on crime.  Governor Hogan has chosen the wrong side of this debate.

Adam Bates is a policy analyst with Cato’s Project on Criminal Justice. His research interests include Constitutional law, the War on Drugs, the War on Terror, police militarization, and overcriminalization.

Used with permission. Cato Institute / CC BY-NC-SA 3.0