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Research & Commentary: Tennessee Seeks to Reform Civil Asset Forfeiture Laws

March 27, 2018

In this Research & Commentary, Matthew Glans discusses proposed legislation in Tennessee that would reform the state's civil asset forfeiture laws.

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 or a prosecution, 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. Tennessee is now considering reforms that would dramatically limit the state’s incentive to seize.

Analysts at the nonpartisan Institute for Justice (IJ) have given the State of Tennessee’s civil asset forfeiture laws a grade of D-, one of the lowest grades in the country. Under existing law, the government only has to prove by a preponderance of the evidence that property is associated with criminal activity in order to forfeit it. Along with this low standard of proof, innocent property owners are required to bear the burden of proof they had no involvement with the criminal activity associated with their property when they seek to retrieve it.

Another notable problem with Tennessee’s forfeiture laws is related to how proceeds are spent. Under current law, Tennessee law enforcement agencies may retain up to 100 percent of forfeiture proceeds. This gives these agencies an incentive to seize because much of the funds can be used to directly benefit their departments.

The proposed Asset Forfeiture and Disposition of Seized Property Act would make several major changes to Tennessee’s forfeiture laws. First, the proposal would require that a person be charged and convicted before property is subject to forfeiture.

Second, the burden of proof for the state would be increased from preponderance of the evidence (the current standard) to clear and convincing evidence.

Third, the proposal would also create a new process for reclaiming property. Under this provision, any person who claims an interest in the seized property could request an “ancillary proceeding” that would “occur after the conclusion of the criminal trial of the person whose property was seized and [would] be heard by the same judge and, if applicable, jury as heard the criminal trial.” This is far more efficient than the current forfeiture warrant process, which can take 30 days to complete.

Fourth, if a property owner does not want to wait for the ancillary proceeding, the bill would permit him or her to request from the court a writ of replevin (a demand to return the property).

Fifth, it would also limit the incentive to seize by moving the funds gained from seizing property away from law enforcement agencies. The proceeds from forfeited property would be deposited in an “asset forfeiture trust fund to be used by the state to reimburse persons who have a bona fide security interest in seized property, innocent owners of seized property, persons whose property was seized and who were later acquitted or whose charges were dismissed, and persons whose charge was the basis of the forfeiture proceedings was disposed of by formal abandonment of the charges.”

Sixth, the proposal would reform the use of equitable sharing arrangements, whereby local law enforcement and federal officials agree to classify the suspected criminal activity as a federal crime and divide the seized assets between them. It would prohibit law enforcement agencies from transferring seized property to the federal government “unless the value of the seized property exceeds $50,000 or if the transfer would circumvent protections otherwise available to a putative interest holder.”

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
 

Lawmakers Target Law Enforcement’s Use of Civil Asset Forfeiture
http://www.columbiadailyherald.com/news/20180304/lawmakers-target-law-enforcement8217s-use-of-civil-asset-forfeiture
Andy Sher of the Chattanooga Times Free Press examines a wide-ranging proposal that would reform Tennessee’s civil asset forfeiture laws.

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 write.

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 by The Institute for Justice (IJ), IJ 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 write.

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