Testimony before the Nebraska Judiciary Committee

Published February 10, 2016

Testimony before the Nebraska Judiciary Committee
Jesse Hathaway, Research Fellow, The Heartland Institute
Wednesday, February 10, 2016

Chairperson Seiler and members of the committee, thank you for giving me the opportunity to testify today.

My name is Jesse Hathaway. I am a research fellow for the Center on Taxes and the Economy at The Heartland Institute, a 32-year-old national nonprofit research and education organization. Our mission is to discover, develop, and promote free-market solutions to social and economic problems. The Heartland Institute is headquartered in Illinois and focuses on providing national, state, and local elected officials with reliable and timely research and analyses on important policy issues.

Civil asset forfeiture, also called civil judicial forfeiture, is a controversial legal process in which law enforcement agencies seize personal assets from individuals or groups suspected of a crime or illegal activity. This can be done even without bringing criminal charges against those whose assets are taken.

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. Many states impose no penalties on law enforcement agents for wrongful seizures, and when property is deemed to have been taken illegally, taxpayers usually have to pay for the returned assets.

The standard of proof used to determine whether a seizure may occur differs from state to state. In all civil forfeitures in Nebraska, property owners are presumed guilty and lose their property unless they contest forfeiture and prove they were not aware their property was being used illegally. Unless an owner actively works to recover his or her property, it will be lost. Property owners are often given very little opportunity to challenge the seizures. When given the opportunity, the process is expensive for those whose property is seized, as they must pay for attorneys and legal fees to prove their innocence. In many instances, property owners must meet with prosecutors, not a judge or jury, to regain their property.

 Nebraska’s standard of proof is relatively high – “beyond a reasonable doubt” – but even with a high standard, the cost of violating Nebraskans’ civil liberties is too high. Between 2004 and 2014, Nebraska law enforcement agencies collaborated with federal agencies through the now-reformed Equitable Sharing Program to collect $42.6 million in new, off-the-books revenue.

Scott Bullock, senior attorney at the Institute for Justice, says forfeitures should be eliminated entirely, except in cases of maritime and customs law. He also offers five recommendations for states not willing to halt all forfeitures: place seized revenues in neutral funds, increase the standard of proof for seizure to require “clear and convincing evidence” of a crime, move the

burden of proof to the government, make the tracking of seized assets more transparent, and eliminate equitable sharing arrangements.

In 2010, the Institute for Justice released a study, titled Policing for Profit: The Abuse of Civil Asset Forfeiture, which is still the most comprehensive national study completed to examine the use and abuse of civil asset forfeiture and the first study to grade the civil forfeiture laws of all 50 states and the federal government. The study found Nebraska is one of only three states that holds the government to the highest possible legal standard of proof in civil forfeiture proceedings, requiring law enforcement to prove its case “beyond a reasonable doubt.”

However, that did not stop state troopers from seizing and ultimately forfeiting $124,700 in cash from Nevada resident Emiliano Gonzolez without so much as charging him with a crime. This was possible through federal equitable sharing, as well as the low federal standards required for a successful forfeiture.

In May 2003, a Nebraska trooper stopped Gonzolez for speeding.

After learning from a dispatcher Gonzolez had a previous arrest for speeding that he did not disclose, troopers asked to search the car and discovered $124,700 in cash in a cooler in the rear of the vehicle. Gonzolez, who was not fluent in English, told police he pooled cash from friends and their relatives in order to buy a refrigerated truck in Chicago. When he arrived in Chicago, the truck he intended to buy for a produce business had already been sold.

He was driving home when he was stopped. Troopers seized the cash pursuant to federal forfeiture and controlled substances laws, in essence alleging that the money was involved in a drug crime. Gonzolez initially told police that he did not have large amounts of cash. He later testified that he was scared because he thought carrying so much money may have been illegal and that he had concealed the money in a cooler to avoid having it stolen. The trial court found that his story was “plausible and consistent” and denied the forfeiture.

The 8th U.S. Circuit Court of Appeals later reversed the trial court’s decision. In so doing, the court held the government established by a “preponderance of the evidence” a “substantial connection” between the money and a drug trafficking offense, even though Gonzolez had not actually violated any drug trafficking laws.

Some here may say civil asset forfeiture reform is about making law enforcement’s job more difficult. That is not the case. Civil asset forfeiture reform is not about punishing law enforcement officers. In fact, its goal is the opposite: By removing the economic incentives that exist in the current system, we can help ensure citizens have trust in the system, leading to improved community-police relations.

As lawmakers, it is your responsibility to defend the rights of the citizenry against harm, both intentional and unintentional. Although the intentions of civil asset forfeiture may have originated with a principled purpose, we can ensure that “crime does not pay” without violating Nebraskans’ due process and private property rights.

Nebraska lawmakers should implement reforms removing incentives for police to seize assets and require clear evidence a person has committed a crime before property is taken. Civil asset forfeiture reform will help Nebraska lead the nation in criminal justice reform, setting an example in which other states can find guidance.

Thank you for your time today.