Earlier this month, the Maryland House of Delegates took a big step forward in the push for civil asset forfeiture reform. By a margin of 81-54, the House approved H.B. 360, which proposes dramatic changes to Maryland’s forfeiture program. Though noble in intention, forfeiture laws have skewed law enforcement incentives and weighted the system too heavily against innocent property owners.
Consider Randy and Karen Sowers, owners of a prosperous dairy farm near Frederick, Md. As direct-to-consumer sellers, the Sowers frequently dealt in cash—sometimes more than $12,000 a week. To avoid raising “red flags,” the Sowers say they were advised by a bank teller to deposit this money in sums less than $10,000. But in trying to stay out of trouble, the Sowers caught the attention of the IRS.
The Feds accused the couple of committing a “structuring” violation (making cash deposits in small amounts for the purpose of avoiding the filing of currency transaction reports), and used civil asset forfeiture laws to seize the company’s bank account—nearly $63,000 in all. In the end, the government got to keep nearly half the Sowers’ hard-earned money, despite never alleging the dairy farmers earned their money by engaging in criminal activity.
Civil asset forfeiture allows law enforcement authorities to legally seize property they believe was associated with criminal activity. The difference between civil and criminal forfeiture is that civil asset forfeiture proceedings charge the property itself with a crime, rather than seizing and forfeiting the property following a criminal conviction of the owner or someone else who used or obtained the property as part of a crime.
With this tool, law enforcement agencies in Maryland are permitted to seize your property, including your home, vehicle and precious belongings, if they suspect these items have been involved in, or are the fruits of, illegal activity. For Marylanders to have their property returned, they have to prove they had no knowledge a crime was being committed.
The House-approved legislation:
- Places the burden on the state to prove not only that property is forfeitable, but that the owner had knowledge of the crime based on a preponderance of the evidence (under current law, it is up to the owner to prove this point).
- Protects primary family homes from forfeiture, unless the owner is convicted of violating, attempting to violate or conspiring to violate specific controlled substances laws, or fails to show up in court as ordered.
- Removes the presumption that any property found near a controlled substance is forfeitable, which is frequently used by law enforcement agencies to justify seizures of small amounts of currency as “drug money.”
The legislation also includes a provision which seems aimed at “adoptive forfeiture,” the recently revised federal practice of executing forfeiture actions on behalf of states and returning a cut of the proceeds to the originating state or local agency. Under the bill, Maryland authorities no longer would be able to transfer assets to the Feds “unless the case is prosecuted in the federal court system under federal law.”
But there is a problem with this. Technically, every transferred forfeiture case is prosecuted under federal law, meaning this provision would do nothing. If lawmakers indeed want to curb state and local law enforcement participation in the federal government’s equitable sharing program, they should look to recently passed legislation in Washington, D.C., as a model for how this can be done.
Maryland already requires forfeiture proceeds be allotted to the state’s general fund—a crucial protection against “policing for profit” which many states still do not have. The new bill proposes to go a step further, enacting sweeping reporting requirements meant to bring greater transparency to the system.
Under the bill, forfeiture statistics would be submitted on an annual basis to the Governor’s Office of Crime Control and Prevention. Law enforcement agencies—including multijurisdictional task forces—would have to detail the date of seizure, the type of property, the crime associated, the outcome, the monetary values, as well as how funds are spent.
These reports also would distinguish administrative from judicial forfeitures. Why is this important? Most forfeiture cases are handled administratively, meaning they never see the inside of a courtroom. Such cases live and die entirely in the hands of bureaucrats. Reporting requirements like these finally would give Marylanders the comprehensive look at their state’s forfeiture apparatus they deserve.
Reforms like this will go a long way towards restoring Marylanders’ confidence in their law enforcement system. It will protect against “policing for profit” and better safeguard the property rights of all Maryland citizens. Now that it has cleared the House, the legislation moves to the state senate, where members already have proposed companion legislation. Chances are good reforms will wind up on the desk of Maryland’s new governor sooner, rather than later.