Maryland Governor Vetoes Forfeiture Reform

Last Friday, Maryland Governor Larry Hogan vetoed State Senate Bill 528, a civil asset forfeiture reform measure that had been passed nearly unanimously by the State Senate. S.B. 528 would have closed the “equitable sharing” loophole that perversely incentivizes Maryland’s law enforcement agencies to circumvent state forfeiture laws for financial gain.

Property owners caught up in the forfeiture system would have had greater due process protections, including the basic presumption of innocence. But citing the objections of the law enforcement establishment, Governor Hogan insisted that, were S.B. 528 to become law, it would jeopardize the state’s ongoing fight against drug crime and human trafficking.

There is just one problem with that analysis: The reforms in the Senate bill would do nothing of the sort.

Rather, S.B. 528 sought to rebalance a system that has become alarmingly one-sided and prone to abuse. Financial incentives built into civil forfeiture encourage the seizure of property, often on dubious grounds, since law enforcement agencies typically get to keep some portion of the proceeds of their forfeitures. Meanwhile, tortuous legal processes make it exceedingly difficult and prohibitively expensive to challenge seizures when they do occur. To prevail in court, property owners typically must prove their own innocence. If they are too poor to afford a lawyer, they must do so on their own.

The end result: a system where it is too easy to seize property from innocent people, such as Randy and Karen Sowers, the Maryland dairy farmers who were forced to fork over half of their farm’s earnings to the government because of an alleged “structuring” violation.

The proposals in S.B. 528 would have dealt with some of these iniquities. The bill shifted the burden of proof to the state, so that property could not be forfeited unless the state demonstrated that a crime had taken place with the owner’s knowledge. It also would have restricted cash forfeitures to amounts greater than $300, unless the money is “directly connected to the unlawful distribution of a controlled dangerous substance.” Finally, and crucially, the bill would have closed the equitable sharing loophole, which promises a cut of the proceeds of any property transferred to the federal government for forfeiture under federal law.

Equitable sharing rewards state and local agencies that circumvent their own, more restrictive, forfeiture laws, and Maryland is the perfect example of why that loophole should be closed. Last year, Maryland law enforcement agencies received $6.5 million in equitable sharing payments, despite the fact that under Maryland law, these agencies are prohibited from directly profiting from their forfeitures. Maryland law enforcement authorities would still have been permitted to transfer seized property if a federal criminal case was related to that property, which would have preserved the ability of state and federal agencies to cooperate in criminal cases.

S.B. 528 is not a perfect proposal. It did not, for example, raise the burden of proof beyond a mere “preponderance of the evidence” in forfeiture cases. But the reform measures it did contain would have gone a long way toward preventing what happened to the Sowers from happening to other innocent Marylanders. Yet the bill was vetoed, ostensibly because forfeiture reform would have proven too serious a hindrance to the enforcement of the state’s laws.

That claim is not new. Washington, DC’s attorney general tried to convince the city council that reform would render forfeitures “virtually impossible”; his arguments were roundly rejected by council members. The former president of the Georgia Sheriffs’ Association published a letter claiming that if forfeiture reforms were passed in his state, the law enforcement community would no longer see the “public benefit in enforcing the law when it comes to drug dealers and other criminal entrepreneurs.”

These arguments make it seem as though uncovering evidence of criminal conduct and tying it to property is so difficult that forfeiture cases can only be won when the evidentiary burdens are low and the deck is stacked in favor of the government. One cannot help but wonder how criminals are ever convicted, given that the burden of proof is much higher and defendants have due process rights far superior to those in civil forfeiture cases.

Affording greater due process protections to citizens will certainly make forfeiture a more intensive process for the government. But if forfeiture is as effective and important a crime-fighting tool as advocates insist it is, the higher cost of pursuing a case will only outweigh the benefit in the cases that are based on little or no evidence. As a consequence, the number of successful forfeitures may fall post-reform, but this does not automatically mean that criminals are getting off scot-free; to assume that would be to assume that every seizure is legitimate and every property owner a criminal, facts we know to be empirically false.

If stopping criminals is the goal, why are criminal charges filed in so few civil forfeiture cases?

Policymakers should not be distracted by straw man arguments. Forfeiture reform is not about helping criminals or hindering the legitimate activities of the law enforcement community. As outlined in this Heritage Legal Memorandum, forfeiture reform is about protecting the innocent, stopping abuses, and realigning the incentives of law enforcement agencies.

Hopefully, next year, Maryland will get another chance to join Washington, DC, Minnesota, Montana, and New Mexico in reforming forfeiture laws and protecting innocent property owners.