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Research & Commentary: North Dakota Needs Civil Asset Forfeiture Reform

August 17, 2018

In this Research & Commentary, Matthew Glans examines North Dakota's egregious civil asset forfeiture laws and the need for reform.

In recent years, states have taken many steps toward limiting the ability of law enforcement agencies to seize property from criminal suspects without conclusive evidence a crime was committed, a process known as civil asset forfeiture. Civil asset forfeiture can also be completed without bringing criminal charges against those whose assets have been seized. The standard of proof permitting seizure differs from state to state. Since 2014, 24 states have comprehensively reformed their forfeiture laws, with 14 states now requiring a criminal conviction before assets are seized. Three states have even banned the practice altogether.

A recent story displaying a Dakota Access Pipeline protester’s fight to reclaim a pickup truck shines a bright light on North Dakota’s egregious civil asset forfeiture laws, which remain among the worst in the nation. In 2016, during a Thanksgiving Day protest of the Dakota Access Pipeline in Mandan, Aaron Dorn was arrested and charged with felony reckless endangerment. According to a state trooper, Dorn was arrested after trying to swerve his vehicle, a 2003 Chevrolet Silverado, to hit the trooper’s car. Following the arrest, the truck was seized under the state’s forfeiture laws. Despite having been acquitted of the charges during a trial in June, Dorn has not yet recovered his vehicle, which he argues is needed to help provide for his household.

Along with Massachusetts, North Dakota has the worst civil forfeiture laws in the country, with analysts at the nonpartisan Institute for Justice giving the state an “F” grade in their report card of state civil asset forfeiture laws. In many states, a much higher standard of evidence is required to seize property – generally a conviction or a preponderance of the evidence. In North Dakota, law enforcement agencies are allowed to seize property if they have probable cause that the property was involved in illegal activity.

The state also shifts the burden of proof to the accused. To regain property, a citizen must appeal to the court to prove his or her innocence in order to recover the property, even if it was used without the owner’s knowledge. Another glaring issue with North Dakota forfeiture laws is that there is a near-total lack of transparency in the forfeiture process; the state does not require confiscated assets to be tracked. This makes identifying and tracking abuses much more difficult.

Another notable problem with North Dakota’s forfeiture laws is related to how proceeds are spent. Under current law, North Dakota law enforcement agencies may retain up to 100 percent of forfeiture proceeds, up to $200,000. If the government’s forfeiture fund exceeds $200,000 over any two-year budget period, the excess funds are deposited in the state’s general fund. This gives agencies an incentive to excessively seize property because much of the funds can be used to directly benefit agency departments. These so-called “limits” on seizure can actually encourage law enforcement agencies to adopt a use-it-or-lose-it mentality, encouraging them to use as many forfeiture funds as possible as often as possible.  

Proponents of forfeiture argue it allows law enforcement agencies to use seized assets toward their enforcement efforts, transforming property illicitly gained by criminals into resources to be used for public benefit. Critics of the process note it gives law enforcement agencies economic incentives to seize property, corrupting them and penalizing innocent property owners.

Assets should be seized only for criminal reasons, and law enforcement should not have incentives to seize any more property than is necessary and justified.

The following documents provide additional information about civil asset forfeiture.
 

Legal Plunder: Civil Asset Forfeiture in North Dakota
https://www.ndsu.edu/centers/pcpe/research/policy_papers/legal_plunder/
This policy paper by Raheem Williams for North Dakota State University reviews the definition of civil asset forfeiture and clarifies the laws in North Dakota, examines recent legislative attempts at reform, and makes policy recommendations. 

Policing for Profit: The Abuse of Civil Asset Forfeiture 2nd Edition
http://ij.org/wp-content/uploads/2015/11/policing-for-profit-2nd-edition.pdf
Dick Carpenter, Lisa Knepper, Angela Erickson, and Jennifer McDonald argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Civil forfeiture threatens the constitutional rights of all Americans. Using civil forfeiture, the government can take your home, business, cash, car or other property on the mere suspicion that it is somehow connected to criminal activity—and without ever convicting or even charging you with a crime. Most people unfamiliar with this process would find it hard to believe that such a power exists in a country that is supposed to recognize and hold dear rights to private property and due process of law,” they wrote.

An Overview of Recent State-Level Forfeiture Reforms
http://www.heritage.org/crime-and-justice/report/overview-recent-state-level-forfeiture-reforms
Jason Snead of The Heritage Foundation examines civil asset forfeiture and how states are moving to reform their forfeiture laws.

Policing for Profit: Federal Equitable Sharing
http://ij.org/report/policing-for-profit/federal-equitable-sharing/
In this report, The Institute for Justice examines federal equitable sharing laws and the effect they have on property seizures in the states.

Civil Asset Forfeiture: 7 Things You Should Know
http://www.heritage.org/research/reports/2014/03/civil-asset-forfeiture-7-things-you-should-know
This Heritage Foundation Factsheet outlines several important things people should know about civil asset forfeiture.

The Civil Asset Forfeiture Racket
http://reason.com/archives/2014/09/24/the-civil-asset-forfeiture-racket
A. Barton Hinkle of the Reason Foundation examines the growing problems created by civil asset forfeiture and argues for repeal of such laws.

Policing for Profit: The Abuse of Civil Asset Forfeiture
https://www.heartland.org/policy-documents/policing-profit-abuse-civil-asset-forfeiture
Marian Williams, Jefferson Holcomb, Tomislav Kovandzic, and Scott Bullock argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you prove it innocent,” they wrote.

Civil Asset Forfeiture Reform Goes Mainstream
https://www.heartland.org/policy-documents/civil-asset-forfeiture-reform-goes-mainstream
Jordan Richardson of The Heritage Foundation discusses how the growing number of civil asset forfeiture abuses have drawn the attention of news media and suggests the increased attention may lead to real reform.

Sidebar: Stricter State Law, More Equitable Sharing
http://ij.org/report/policing-for-profit/federal-equitable-sharing/stricter-state-law-more-equitable-sharing/
The Institute for Justice examines a 2011 study published in the Journal of Criminal Justice by criminologists Jefferson Holcomb, Tomislav Kovandzic, and Marian Williams that found local and state law enforcement agencies in states choosing to make civil forfeiture more difficult and less financially rewarding through state laws have tended to turn to federal equitable sharing to make up for lost funds.

 

Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and PolicyBot, Heartland’s free online research database.

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Author
Matthew Glans joined the staff of The Heartland Institute in November 2007 as legislative specialist for insurance and finance. In 2012, Glans was named senior policy analyst.
mglans@heartland.org @HeartlandGR