When The Greenville News published a scathing report on Civil Asset Forfeiture (CAF) abuses in South Carolina in January of 2019, it led to several attempts at reforming the affront to our constitutional protections enshrined in the concept of due process within the Palmetto State. The most recent iteration of reform comes from Speaker Pro Tem Tommy Pope (R), York; H. 3619.
For the uninitiated, and in simple terms, Civil Asset Forfeiture is the process by which government seizes and then takes permanent possession of private property it suspects may be associated with a criminal enterprise. I use the word, “may,” because in a significant number of cases (nearly 1/5th in South Carolina alone) the government does not actually connect the process with criminal activity.
The Speaker Pro Tem of South Carolina brings a unique perspective to his fight to curb abuses of CAF; he is a former police officer and prosecutor. I reached out to Pro Tem Pope to discuss his pending legislation. Immediately he brought up many of the same challenges I experienced while fighting for CAF reform in Georgia: the delineation of civil and criminal processes, abandoned property, making sure locals didn’t subvert state law by using the federal process, and making sure police departments are funded appropriately.
Proponents of CAF like to point to the fact that the process is not a criminal proceeding. Since it is a civil case, prosecutors will say, it should not require the same burden of proof as a criminal case. They love to use O.J. Simpson as an example, where Simpson was found not guilty criminally and subsequently ordered to pay restitution to Nicole Brown’s family after a civil case. To use the Simpson example one has to ignore that it was a private entity and not the government who brought the case. Under our system of laws, the government must always face a higher burden before depriving us of our liberties. Further, this thought process ignores two other key points: one, that removing ownership to personal property is a punishment, and two that the government is not supposed to punish a person without proving them guilty beyond a reasonable doubt. In another blog, I will explore this concept further, especially in light of how the Timbs v. Indiana case has now tied the criminal and civil processes together.
Pope brought up a specific example of another argument I have heard before; what should be done with abandoned property? The example I discussed with the Speaker Pro Tem involved a semitrailer carrying a load of microwaves which had been packed with cash. When the truck driver was pulled over he claimed he had no knowledge that the cash was there and that it was not his. What should happen in this instance? My thought on this is that most or all states have abandoned property laws already on the books. Pope mentioned that if South Carolina went that route, they would need to make the legal path clearer than it is today.
The third thing that rang ever so familiar was when Pope mentioned that locals would likely turn to the federal government in an effort to go around state law. His concerns are warranted. When in 2015 New Mexico went to a model that required a conviction prior to asset forfeiture, locals turned to the federal equitable sharing program to go around state law. Under Federal Law, the equitable sharing program rewards local law enforcement’s use of civil asset forfeiture for federal crimes. The local law enforcement agency gets to keep a large portion of the seized assets value and passes a small portion on to the federal government, again without the requirement to prove a crime. This prompted the New Mexico legislature to revisit the law to close this loop hole in 2019.
Under our federal system of government, local and state law enforcement are under the prevue of the state legislature. Using that logic while a member of the Georgia House, I attempted to address this issue in advance of it becoming a problem by creating a very high floor for participation in the federal equitable sharing program. The idea was that if it was a genuine criminal enterprise, say $100,000 in seized value, the locals would get a share but only if a conviction was received. If it was less than that, they would not receive any of the funds.
And lastly, the Pro Tem was worried about making sure local police departments are funded adequately and that this was not perceived as an effort to defund the police. Pope is absolutely right about this. If we are to set about adequately funding our brave men and women in law enforcement, it should be done with a more legitimate means and the legislative appropriations process rather than incentivizing use of a process that tramples on some of our core constitutional principles.
Speaker Pro Tem Pope told me that the bill is likely to be modified in committee, and it will bear watching as it progresses through this legislative session. I know I will be watching.