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Research & Commentary: Reforming West Virginia’s Civil Asset Forfeiture Laws Could Help Address State’s Opioid Epidemic

October 7, 2019

West Virginia lawmakers should reform their existing civil asset forfeiture laws to criminal asset forfeiture and use forfeited proceeds for rehabilitation, medication-assisted treatment, and court expenses to address the state's opioid epidemic.

In 2017, 833 West Virginians died from opioid overdoses“a rate of 49.6 per 100,000 persons.” According to the National Institute on Drug Abuse, West Virginia’s 2017 overdose rate was “double the rate in 2010 and threefold higher than the national rate of 14.6 deaths per 100,000 persons.”

To date, the opioid epidemic has imparted a mighty economic and social toll. According to the Regional Educational Laboratory Appalachia, the opioid crisis has cost West Virginia “$8.8 billion a year … for health care and substance abuse treatment, criminal justice costs, lost worker productivity, and the burden of fatal overdoses.” A 2018 American Enterprise Institute Working Paper estimated that West Virginia’s per-capita total costs, including mortality costs, were the highest in the nation at $4,378.

West Virginia is in the midst of an opioid-induced economic and social crisis. However, there are several ways to address the state’s difficulties. For example, West Virginia lawmakers should reform civil asset forfeiture laws to criminal asset forfeiture. Moreover, the Mountain State should require forfeited property be deposited into programs that directly address the opioid epidemic, including rehabilitation, drug courts, and overdose reversal drugs such as naloxone.

The Institute for Justice (IJ) gave West Virginia a grade of D- for the state’s civil asset forfeiture laws. IJ notes that current law only requires a preponderance of evidence for assets to be seized and 100 percent “of forfeited proceeds go to law enforcement.” Worse, there is no data available on forfeited proceeds. Although local agencies must “make reports to their budgetary authorities, there is no requirement that those reports be centralized or made easily accessible to the public.” West Virginia has received vast sums in civil asset forfeitures through the state’s federal equitable sharing program. From 2000 to 2013, West Virginia “received $56.8 million in equitable sharing proceeds.”

Mountain State lawmakers have tried to reform the state’s civil asset forfeiture program. In 2018, House Bill 4615 would have “require[d] a criminal conviction or guilty plea before law enforcement officials could claim ownership of assets.” Unfortunately, the bill would have deposited proceeds to “the State’s General Fund.”

A better reform would be to reallocate proceeds from criminal asset forfeiture to programs that directly address the opioid epidemic. In 2015, the Georgia General Assembly passed House Bill 233, which reformed the state’s civil asset forfeiture laws. Under the “Georgia Uniform Civil Forfeiture Procedure Act,” proceeds from forfeitures can be used “for drug treatment, mental health treatment, rehabilitation, prevention, or education or any other program which deters drug or substance abuse or responds to problems created by drugs or substance abuse; for use as matching funds for grant programs related to drug treatment or prevention; to fund victim assistance; or for any combination of the foregoing.”

Treating opioid overdoses is costly. In 2018, West Virginia spent $1 million to provide first responders with 34,000 “doses of the overdose reversing drug naloxone.” Naloxone does not treat opioid use disorders, but revives persons who have overdosed.

Medication-assisted treatment (MAT) does help treat opioid use disorders. However, many states rely on federal health care programs, such as Medicaid, to provide access to MAT services, which include the use of drugs such as buprenorphine, methadone, and suboxone. According to Sen. Joe Manchin (D-WV), West Virginia’s Medicaid program pays for 44.7 percent of MAT. According to Manchin, “42,000 people in West Virginia—including 4,000 youth—sought treatment for illegal drug use but failed to receive it.”

As a federal program, Medicaid is not guaranteed. Moreover, as the national debt continues to increase, it is likely the federal government will slash state Medicaid spending, which will reduce access to MAT treatment. Further, West Virginia has already received more than $70 million from the U.S Department of Health and Human Services’ “State Opioid Response Grants.” Like other federal programs, this money is not guaranteed and should not be relied on. 

Another method for treating the opioid epidemic has been drug-courts. The stated goal of drug courts in West Virginia is to reduce “recidivism and substance abuse among offenders.” Drug courts implement a variety of treatment options, including “early, continuous, and intense treatment; mandatory periodic drug testing; community supervision; appropriate sanctions and incentives; and other rehabilitation services, all of which is supervised by a judicial officer.” West Virginia drug courts have also reduced incarceration costs. In 2013, a prison sentence of one year cost the state $24,000, a jail sentence of one year cost $18,250, but “a year in drug court cost $7,100.”

Currently, West Virginia is charging individuals, including physicians, for their role in the state’s opioid epidemic. In April 2019, the Appalachian Region Prescription Opioid (ARPO) strike force charged “60 defendants, including 53 medical professions … alleging the illegal distribution of more than 23 million pills.” In September 2019, ARPO issued “charges against 13 individuals … for alleged offenses relating to the over prescription of controlled substances through ‘pill mill’ clinics.”

West Virginia is suffering from one of the highest opioid overdose rates in the country. It is imperative that lawmakers consider all available options to address this crisis. One easy solution would be to reform the state’s civil asset forfeiture laws. As currently written and implemented, these laws are blatantly unconstitutional because they do not require criminal convictions. Reforming the process from civil to criminal asset forfeiture and allocating seized proceeds to rehabilitation programs would provide a big funding boost and could make a huge difference in helping West Virginians struggling with opioid addiction.

The following articles provide more information on the opioid epidemic and civil asset forfeiture.

Research & Commentary: Reforming Maine’s Civil Asset Forfeiture Laws Could Help Opioid Epidemic
https://www.heartland.org/publications-resources/publications/research--commentary-reforming-maines-civil-asset-forfeiture-laws-could-help-opioid-epidemic
The Heartland Institute’s State Government Relations Manager Lindsey Stroud examines how Maine should reform its current civil asset forfeiture laws to “criminal asset forfeiture” and divert seized proceeds to programs including drug rehabilitation, counseling, and criminal court, among other programs aimed at decreasing opioid abuse.

Research & Commentary: State Medicaid Costs Associated with Opioid Use Disorder Tripled from 1999 to 2013
https://www.heartland.org/publications-resources/publications/research--commentary-state-medicaid-costs-associated-with-opioid-use-disorder-tripled-from-1999-to-2013
In this Research & Commentary, Lindsey Stroud, state government relations manager at The Heartland Institute, examines a study by Penn State researchers which found the costs of the opioid epidemic to states’ Medicaid programs exceeded more than $3 billion in 2013. Stroud notes that “overall societal costs” of opioid use disorder, including health care, criminal justice and workplace costs have increased by over 565 percent.

Policing for Profit: The Abuse of Civil Asset Forfeiture 
https://www.heartland.org/publications-resources/publications/policing-for-profit-the-abuse-of-civil-asset-forfeiture?source=policybot
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 write.

Civil Asset Forfeiture, Equitable Sharing, and Policing for Profit in the United States
https://www.heartland.org/publications-resources/publications/civil-asset-forfeiture-equitable-sharing-and-policing-for-profit-in-the-united-states?source=policybot
Jefferson E. Holcomb and Marian R. Williams, professors in the department of Government and Justice Studies at Appalachian State University, and Tomislav V. Kovandzic, a professor in the University of Texas–Dallas School of Economic, Political, and Policy Studies, identify the effects of civil asset forfeiture reform on law enforcement activities. They write, “There is substantial anecdotal evidence that law enforcement [agencies] utilize a variety of tactics to generate the greatest revenue from their forfeiture operations,” a hypothesis their analysis of U.S. Department of Justice statistics confirms. 

Seize First, Question Later: The IRS and Civil Forfeiture 
https://www.heartland.org/publications-resources/publications/seize-first-question-later-the-irs-and-civil-forfeiture?source=policybot
Institute for Justice researcher Dick M. Carpenter II and attorney Larry Salzman examine the use and abuse of civil asset forfeiture laws by the Internal Revenue Service. “Federal civil forfeiture laws give the Internal Revenue Service the power to clean out bank accounts without charging their owners with any crime,” they write.

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. 

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

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.

Inequitable Justice: How Federal ‘Equitable Sharing’ Encourages Local Police and Prosecutors to Evade State Civil Forfeiture Law for Financial Gain
https://www.heartland.org/publications-resources/publications/inequitable-justice-how-federal-equitable-sharing-encourages-local-police-and-prosecutors-to-evade-state-civil-forfeiture-law-for-financial-gain?source=policybot
The Institute for Justice examines the federal law enforcement practice known as equitable sharing, which enables and indeed encourages state and local police and prosecutors to circumvent the civil forfeiture laws of their states for financial gain.

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.

The Heartland Institute can send an expert to your state to testify or brief your caucus; host an event in your state; or send you further information on a topic. Please don’t hesitate to contact us if we can be of assistance! If you have any questions or comments, contact Heartland’s Government Relations department, at governmentrelations@heartland.org or 312/377-4000.

Author
Lindsey Stroud is a state government relations manager at The Heartland Institute.
lstroud@heartland.org