Under a new bill introduced by State Sen. Tommy Garrett, Nebraska could become the tenth state to require a criminal conviction as a prerequisite for most or all forfeitures. Surprisingly, the bill, LB 1106, has earned the backing of not only civil liberties groups like the ACLU of Nebraska and the Institute for Justice, but also the Nebraska Attorney General's Office and State Patrol.
"To have libertarians, conservatives and liberals all in one office working together, it was a sight to behold," Garrett said.
LB 1106 would generally require a criminal conviction for drug, gambling and child pornography offenses. However, the bill has several exemptions, including if the owner dies, fails to appear in court or is removed from the country. LB 1106 would lower the standard of proof from beyond a reasonable doubt to clear and convincing evidence—a less stringent, but still higher standard than what the federal government and more than 30 states use.
The bill would also provide counsel to indigent innocent owners, who did not know or consent to their property being used in criminal activity. Not going as far as reforms enacted in other states, LB 1106 would not shift the burden of proof, meaning that these third-party owners—and not the government—would still have to prove that they did not know about the suspect's alleged crime to recover their property.
Finally, LB 1106 would prevent prosecutors from using "suspicion, suggestion, supposition or speculation" when attempting to forfeit property. Moreover, under the bill, "the mere presence or possession of large amounts of money…standing alone" would not be enough to justify forfeiture.
Nebraska's unlikely reform coalition has its roots in a court case from more than a dozen years ago. Back in 1999, the Nebraska Supreme Court declared the state's forfeiture laws were unconstitutional. Under Nebraska law, in order to forfeit property, the government has to show that a seized property has connections to criminal activity beyond a reasonable doubt—the same standard used in criminal cases. In State v. Franco, the court wrote that that same standard of proof "indicates the Legislature intended that [the forfeiture statute] should be considered criminal in nature."
As such, the court ruled that beginning forfeiture proceedings and commencing criminal charges against a defendant violated both the U.S. and Nebraska Constitutions, which prohibit double jeopardy, i.e. trying someone in two separate proceedings for the same offence.
Although the decision was a win for private property rights, it unfortunately did not deter forfeiture abuse in Nebraska. While the state's forfeiture law has "fallen into disuse after Franco," Nebraska agencies routinely exploited a federal forfeiture program called "equitable sharing." By collaborating with a federal agency, like the DEA, a local or state agency can outsource forfeiture litigation to federal prosecutors and collect up to 80 percent of the proceeds of a forfeited property for their involvement. In contrast, the state constitution only allows agencies to receive 50 percent of forfeiture proceeds.
In other words, equitable sharing grants a powerful incentive to circumvent state law. According to Policing for Profit, a recent report by the Institute for Justice, police and prosecutors have received more than $48 million in equitable-sharing funds from the U.S. Department of Justice between 2000 and 2013. Even more concerning, an investigation by The Washington Post found that in Nebraska, there have been nearly 900 cash seizures made without warrants and without charging the owner, since 9/11. One such victim was Mark Brewer, an Air Force veteran who lost $63,550 to civil forfeiture, despite never being charged with a crime.
But late last December, the Justice Department temporarily suspended the program. Unable to pursue forfeiture under Nebraska's unconstitutional statutes and now unable to participate in equitable sharing, local and state law enforcement are in the unlikely position of joining forces with reformers.
To further strengthen the bill, state senators could consider two amendments at the Judiciary Committee's meeting next week. One amendment would improve the reporting requirements in LB 1106, while the other would copy a reform from New Mexico. That amendment would ban local and state law enforcement from contracting with the federal government for litigation services, unless the seizure had at least $50,000 in cash. If adopted and enacted, that provision would prevent Nebraska law enforcement from circumventing the new state law, should the Justice Department revive equitable sharing.
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