Research & Commentary: South Carolina Should Reform Civil Asset Forfeiture
In this Research & Commentary, Lindsey Stroud examines a proposal to reform South Carolina's civil asset forfeiture laws.
Civil asset forfeiture, also known as civil judicial forfeiture, is a controversial legal process that allows law enforcement agencies to seize personal assets from individuals and groups suspected of a crime or illegal activity.
Legislators in South Carolina are discussing reforms to the state’s civil asset forfeiture laws by requiring a criminal conviction for the seizure of certain property and prohibiting the seizure of property from innocent, partial, or joint owners. The proposal would establish standards for the state to justify the forfeiture of property. It would also determine requirements for when state law enforcement can work with federal agencies, require itemized receipts and annual reports related to the seized property, and establish how proceeds can be used by law enforcement agencies. A significant portion of the funds would be deposited in the state’s general fund.
In 2015, the Institute for Justice (IJ) gave South Carolina a “D-” grade in its civil asset forfeiture report card. IJ cited multiple issues with the state’s current laws, including a “low bar to forfeit and no conviction required, poor protections for innocent third-party property owners, [and] 95% of forfeiture proceeds go to law enforcement.”
South Carolina requires “probable cause” for property to be seized. The burden of proof falls upon citizens in seized property cases, including innocent persons and co-owners of property who have no knowledge their property was being used as part of a crime.
A significant issue with current forfeiture laws is how proceeds from seized assets are distributed. State law permits police agencies “to keep the first $1,000 of a seizure.” After reaching that threshold, proceeds from the remaining seized property is split between government agencies. Law enforcement receives 75 percent, prosecutors receive 20 percent, and the remaining 5 percent of funds are distributed to the state’s general fund.
South Carolina’s equitable sharing arrangement with the U.S. Department of Justice allows law enforcement officials to circumvent state law by working under federal law. Federal agencies prefer these arrangements, because federal law enforcement also profit. IJ ranks South Carolina “29th for federal forfeiture, with over $56 million in [DOJ] equitable sharing proceeds from 2000 to 2013.” Between the same time, the state received an addition $18 million from the Treasury Department in equitable sharing proceeds.
Current South Carolina civil asset forfeiture laws also lack transparency mechanisms that keep seizures in check. Although law enforcement agencies are required to prepare reports upon request (the reports are supposed to include “descriptions of seized assets and amounts of money seize, along with the amounts and types of drugs involved”), The Post and Courier (SC) requested information on seized property to approximately a “dozen police agencies and not one had prepared such a report.”
Without transparent reporting practices, it is difficult to track seized proceeds and to determine whether law enforcement agencies are abusing the state’s civil asset forfeiture laws. After filing a Freedom of Information Act Request, IJ was only able to “obtain records to the 5 percent of forfeiture proceeds deposited into the state general fund.” Using the information from the Freedom of Information Act, IJ estimates South Carolina “law enforcement agencies obtained $22.7 million in forfeiture proceeds between 2009 and 2014, averaging $3.8 million per fiscal year.”
Lawyers in South Carolina have noted that due to the complexity with the laws and procedures in civil asset forfeiture cases, many people “never respond to a lawsuit for civil asset forfeiture and simply give up their money or property without realizing that they may be able to get it back.”
Lawmakers in the Palmetto State should restore due process to their criminal justice system by reforming the state’s civil asset forfeiture laws. By removing incentives for police to seize assets, requiring a criminal conviction and establishing where proceeds can go, South Carolina could lead the nation in criminal justice reform.
The following documents provide additional information on civil asset forfeiture.
Civil Asset Forfeiture: When Good Intentions Go Awry
In this testimony given before the Mississippi Asset Forfeiture Transparency Task Force, John Malcolm of The Heritage Foundation examines forfeiture in Mississippi and other states and argues for reform. “Civil asset forfeiture should remain focused on its original purpose of depriving criminals of their ill-gotten gains, but we must be sure that it is criminals and only criminals who are being impacted,” said Malcolm.
Policing for Profit: The Abuse of 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 write.
Civil Asset Forfeiture, Equitable Sharing, and Policing for Profit in the United States
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
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
This Heritage Foundation Factsheet outlines several important things people should know about civil asset forfeiture.
Civil Asset Forfeiture Reform Goes Mainstream
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
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
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.
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