Minnesota adopts law curbing asset forfeiture abuse

May 10

As Nick Sibilla of the Institute for Justice explains in this column, the Minnesota state legislature recently adopted a law curbing asset forfeiture abuse. The new law forbids authorities from confiscating and keeping suspects’ property unless and until they have been convicted of a crime, or pleads guilty to committing it:

In a big win for property rights and due process, Minnesota Gov. Mark Dayton signed a bill [on May 6] to curb an abusive—and little known—police practice called civil forfeiture. Unlike criminal forfeiture, under civil forfeiture someone does not have to be convicted of a crime, or even charged with one, to permanently lose his or her cash, car or home.

The newly signed legislation, SF 874, corrects that injustice. Now the government can only take property if it obtains a criminal conviction or its equivalent, like if a property owner pleads guilty to a crime or becomes an informant. The bill also shifts the burden of proof onto the government, where it rightfully belongs. Previously, if owners wanted to get their property back, they had to prove their property was not the instrument or proceeds of the charged drug crime. In other words, owners had to prove a negative in civil court.

As Sibilla points out, prior to the passage of this reform, Minnesota law enforcement agencies often seized property from people who had not been convicted of any crime, and then used the proceeds for their own benefit. Unfortunately, as he also notes, most other states and the federal government continue to permit abusive asset forfeitures, a problem I previously blogged about here, here, and here. Most of the victims of asset forfeiture are poor and politically weak, and cannot easily fight a prolonged legal battle to get back their possessions. In many cases, state law gives owners have so little effective opportunity to challenge the confiscation of their property that the seizures end up violating the Due Process Clause of the Fourteenth Amendment, which forbids states from taking away property rights without “due process of law.”

The Minnesota reform is a good step in the right direction that other states should copy. But it might be even better to simply ban asset forfeiture completely. Even if a defendant has been convicted of a crime, the appropriate remedy is to punish him for it and – if possible – force him to pay compensation to the victims. But there is no reason to allow the state to enrich itself by seizing property that happened to be somehow used in the commission of the offense, even if it was not illegally obtained and is not needed for victim compensation. If a thief uses his legitimately acquired car to flee the scene of a crime, we should certainly punish him for the theft and force him to compensate the victim for their loss. But that’s no reason to let the police seize the car and sell it for their own profit.

CONFLICT OF INTEREST WATCH: I have done considerable pro bono work for the Institute for Justice, the the public interest law firm that spearheaded the effort to pass the new Minnesota law, and has litigated numerous asset forfeiture cases elsewhere.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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