Maryland Gov. Larry Hogan on Thursday became the latest state leader to sign contentious legislation restricting civil asset forfeiture — the process that allows police to seize and keep property suspected of being connected to illegal activity without having to convict, or even charge, the owner with a crime.
Hogan’s signature represents a reversal for the Republican governor, who, under pressure from high-profile law enforcement groups, vetoed a bill on the same subject last year. The General Assembly promptly overrode the veto to pass that measure and then introduced additional changes this year that limit state involvement in a federal forfeiture program and require authorities to report what they seize.
Widespread civil forfeiture has been controversial since becoming a key tool in the drug war in the 1980s. The back-and-forth in Maryland is part of a fresh round of battles being waged in statehouses nationwide because Congress has stalled on passing federal reforms — though a new federal measure was introduced Thursday.
Some 50 bills have been floated in at least 22 states this year to limit civil forfeiture. Nine states have passed some form of reform law, while similar measures failed in six, according to a Center for Public Integrity review of the legislation. Eleven bills are pending in seven states.
The struggles over the legislation are proving especially bitter because both backers and opponents are used to getting their way in state capitals: Powerful local police groups and prosecutors are trying to preserve the lucrative cash cows that help them fight crime, while an unusual but potent national coalition of liberals and libertarians decries civil forfeiture as policing for profit that rides roughshod over individual rights.
The anti-forfeiture coalition — a grouping of strange political bedfellows that includes the conservative American Legislative Exchange Council, the Charles Koch Institute, the libertarian Institute for Justice, and traditionally liberal players Common Cause and the American Civil Liberties Union — distributes various forms of “model” legislation to lawmakers that would bar asset forfeiture in civil, not criminal, proceedings. The odds are stacked against property owners in civil forfeiture because they must provide their own attorneys and the government does not have to meet the same burden of proof as in criminal cases.
The allies want a criminal conviction to be required before assets can be forfeited, public disclosure of what’s been taken to stem abuses, and general funds to hold forfeited goods, rather than accounts funneled directly to law enforcement. The measures also attempt to limit “equitable sharing,” through which federal authorities and local police agencies divvy up seized property.
Ten states — California, Minnesota, Missouri, Montana, Nebraska, Nevada, New Mexico, North Carolina, Oregon and Vermont — require a criminal conviction. Six of these states passed the measures in the past two years.
“We are disregarding individuals’ property rights, which are sacrosanct for a reason,” said Dick Carpenter, who helps challenge forfeiture laws for the Institute for Justice. “At what cost do we justify a nominal benefit?”
But law enforcement groups have pushed back against the proposed changes, writing letters, testifying before committees and furiously lobbying. Their tactics have stalled bills, weakened proposed legislative language, and pushed Hogan and Wyoming Gov. Matt Mead (R) to veto similar legislation last year. This year, New Hampshire Gov. Maggie Hassan (D) said she would veto a similar bill to preserve funds for law enforcement’s drug-fighting efforts amid the deathly opioid epidemic.
Many bills elsewhere stalled in the face of fiery rhetoric: Oklahoma and Utah officials warned that their states would be taken over by drug cartels because police wouldn’t have the resources to fight them.
“What it will do is enhance the drug-trafficking organizations,” Eric Dalgleish, then a major with the Tulsa Police Department, said on KFAQ radio in Tulsa in November. “They are politically savvy. They are political activists. If you think they’re not watching this and deciding what state to set up business in, we’re being naive and we’re being ignorant.”
Police say the funds are important tools, providing money for drug buys in sting operations and paying for equipment, weapons and training programs. Significant cash is at stake, even without counting money shared with the federal government. Utah collected about $11.3 million in forfeiture funds over 10 years, while California kept $29 million last year. But the total take in most states is obscured by lax reporting requirements.
Not all police officials support civil forfeiture. Stephen Mills, now police chief in Apache, Okla., was on the receiving end of it when he lent his blue Ford F-250 to an employee to pick up supplies for the ranch he owned. The worker stole some wire from an oil field, and Grady County sheriff’s deputies arrested the worker and seized the truck.
Mills thought they were holding his vehicle as evidence. He spent the next four months calling twice a week, arguing with the department as deputies told him he could not prove his innocence. After Mills went to the local newspaper, which called the district attorney, Mills quickly got his truck back.
Since then, he has pushed for modifications of Oklahoma’s laws.
This year, Maryland’s top law enforcement groups did not take a position on the latest bill, even though Maryland Sheriffs’ Association Executive Director Karen Kruger called it complicated and difficult to implement.
“After the governor’s veto was overridden from last year, the message from the legislature was clear,” she said. “It did not appear any opposition was going to have any effect this time around.”
Hogan spokesman Matt Clark said the governor’s position this year represented a response to technical issues in last year’s legislation.