The bill would basically require a criminal conviction before police can take property associated with a crime. “Civil” asset forfeiture, by definition, allows law enforcement to seize and keep property without a criminal conviction. It often puts the onus on the property owner to “prove” that he or she obtained the property legitimately, or that it wasn’t used for criminal activity.
The bill was supported by the American Civil Liberties Union of New Mexico, the conservative think tank the Rio Grande Foundation, the Drug Policy Alliance and the libertarian law firm the Institute for Justice (IJ). In an e-mail, Peter Simonson of the ACLU-NM writes, “The sponsor was the Republican chair of the House Judiciary Committee and the bill had strong bipartisan support throughout the legislative process, passing both chambers unanimously.”
The bill was even praised by New Mexico resident Brad Cates, who headed up the Justice Department’s forfeiture office during the Reagan administration, the era when the more odious practices began.
In 2010, the IJ gave New Mexico a D-plus for its forfeiture laws. From that report:
Even after a reform effort in 2002, New Mexico’s civil forfeiture laws still do not offer adequate protections for property owners. To secure a civil forfeiture, the government must prove, by clear and convincing evidence, that property is related to criminal activity and thus subject to forfeiture. This is a higher standard than most states but still lower than proof beyond a reasonable required to establish criminal guilt. Moreover, in most instances, property owners have the burden of proof for innocent owner claims. And law enforcement may still receive 100 percent of the proceeds from any forfeiture.
Forfeiture is an interesting political issue. It’s a civil liberties matter, but it involves the unjust taking of property. And so while victims of unjust forfeitures are disproportionately poor and disproportionately minority, the practice seems to get the political right way more up in arms than the political left. For example, while the ACLU and DPA both had a lot to do with this bill, so far the only national coverage I’ve seen outside the sponsoring organizations has come from Reason, Cato, the Daily Caller and the Washington Times, all right-of-center or libertarian organizations.
The bill now awaits the signature of Gov. Susana Martinez (R).