Across the country, police are using a tool called civil asset forfeiture to seize millions of dollars in cash and property they claim have been involved in criminal activity.
The owner doesn’t even need to be guilty of a crime. In many cases, police seize money, cars, houses and other valuables without ever charging the owner.
The process has allowed law enforcement to strip many innocent people of their money and belongings, as the SPLC exposed in a 2017 report with Alabama Appleseed on the abuse of the practice in Alabama.
But Alabama has taken a step in the right direction.
Gov. Kay Ivey signed a bill this week that will increase transparency around the process. Under the Alabama Forfeiture Accountability and Integrity Reform Act (FAIR), the attorney general would establish and maintain a case tracking system and searchable public website with details about each seizure and the property that is seized.
But the new state law does not go far enough to prevent police from abusing the rights of property owners, said Emily Early, staff attorney for the SPLC Action Fund. The SPLC Action Fund is pressing Alabama lawmakers to ensure a criminal conviction before police can forfeit property.
“While we applaud the efforts of Gov. Ivey and our state legislators in taking this step towards protecting the property and due process rights of Alabamians across the state, it’s not enough for the actors who profit from civil asset forfeiture to simply report what they take from Alabamians,” Early said. “That’s because the practice of civil asset forfeiture is, at its core, wrong. In future legislative sessions, we hope and expect that lawmakers will learn from the data provided through this new law and give Alabamians the necessary relief they deserve constitutionally by ensuring that a criminal conviction is required before any property is forfeited to the state.”
The new law in Alabama comes on the heels of a U.S. Supreme Court decision in February that bars excessive fines imposed by states. In Timbs v. Indiana, a man named Tyson Timbs pleaded guilty to a drug offense, was fined $1,200 and sentenced to a year of home detention. But then he paid a much higher cost.
Using civil asset forfeiture, police in Indiana took his Land Rover, for which he had paid $42,000 with money he inherited from a life insurance policy after his father’s death. The seizure was effectively an additional fine, four times larger than the $10,000 maximum fine for his crime.
Timbs went to court to get his vehicle back. He won at the trial court but lost at the Indiana Supreme Court, which ruled that states weren’t bound by a clause in the U.S. Constitution that bars excessive fines. The U.S. Supreme Court saw it differently, however, ruling that the clause also applies to the states.
“The Supreme Court, in the unanimous Timbs v. Indiana decision this year, made clear that states can’t impose excessive fines on residents, and put states on notice that practices like civil asset forfeiture that exist mainly to generate revenues for the government may be unconstitutional,” Early said. “A case in Alabama has already been filed that alleges just that.”
In that case, Lena Sutton, who was separated from her spouse, was staying with a friend on Feb. 20, 2018, when her car was seized during a drug trafficking arrest in Leesburg.
Sutton was not in the car and did not know it was being used in connection with drug activity. She was not arrested or charged with a crime. But the car has yet to be returned. Her case is highlighted in a federal class action lawsuit that questions the constitutionality of Alabama’s civil asset forfeiture system.
In its report on civil asset forfeiture, the SPLC revealed that 70 Alabama law enforcement agencies were awarded nearly $2.2 million in 1,110 civil forfeiture cases filed in 14 counties in 2015. In a quarter of the cases reviewed, the property owner was not charged with a crime linked to the civil forfeiture. In more than half of the cases where criminal charges were filed, the charge was simple possession of marijuana or paraphernalia.
After the police seize property, it is an uphill climb for the owner to get it back. To do so, they must go to court. But many property owners cannot afford a lawyer and simply don’t show up to fight the forfeiture.
More than half of the cases that the SPLC and Alabama Appleseed reviewed ended in default judgments – easy wins for the state. What’s more, the government only has to prove that there is a “preponderance of evidence” suggesting the property was connected to a crime.
Overall, 79 percent of the 1,100 cases reviewed by the SPLC and Alabama Appleseed ended in favorable verdicts for prosecutors. Typically, once the government wins, law enforcement agencies get to keep all or most of the property they have seized, giving police and prosecutors a powerful incentive to abuse the process.
As the SPLC argued to the Supreme Court in a friend-of-the-court brief in support of Timbs, civil asset forfeiture exemplifies a larger pattern in the criminal justice system: Governments increasingly rely on generating revenue from fines, costs and fees imposed on defendants in criminal cases.
For 30 years, these fines, costs, and fees have ballooned as state and local governments sought more and more revenue to prop up a criminal justice system that has led to the world’s largest prison population.
“Across the nation, legislators, mobilized citizens and impacted people are demanding that the government be focused on keeping communities safe, not policing for profit,” Early said. “Protecting people’s property rights from government overreach is one of the foundational principles of American democracy. It’s time we legislate that into reality in Alabama.”
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