In a massive win for property rights, due process, and civil liberties, Maine last week became the fourth state in the nation to end civil asset forfeiture.
In civil asset forfeiture, law enforcement officers seize someone’s property if they suspect the property was involved in a crime—without ever convicting or even charging the owner with a crime. (This is distinct from criminal asset forfeiture, where someone has been convicted of or at least charged with a crime.)
The Institute for Justice has found that from 2000 through 2019, law enforcement agencies took nearly $69 billion worth of assets from Americans through this unjust procedure. Some of the horror stories became notorious, as when police in Oklahoma took $53,000 from a Burmese Christian rock band over a minor traffic violation, or when police in Arizona seized a man’s Jeep because his girlfriend was accused of using it to sell $25 worth of marijuana to an undercover agent. Both these cases ended with public interest law firms stepping in and helping the victims recoup their assets, but too many stories don’t end that way.
The practice has drawn criticism from all over the political spectrum, ranging from Patrick Leahy to Chuck Grassley in the Senate, from Jaime Raskin to Tim Walberg in the House, and from the ACLU to the Heritage Foundation. The ire comes with good reason: civil forfeiture shifts the burden of proof from the state to the individual, in direct contradiction to the spirit of our Constitution. Civil forfeiture effectively creates a system wherein Americans are guilty until they can prove that they’re innocent and that the assets seized were not involved in committing a crime.
At the state level, the push to end civil asset forfeiture has received even more full-throated, bipartisan support. For example, Maine’s new law passed unanimously in the state senate and by a massive margin in the state house of representatives. The reform became law last Tuesday, despite the fact that Gov. Janet Mills never signed it, because it had been sitting on her desk for ten days. Even if Mills wanted to veto the legislation, it passed both chambers with more than a two-thirds majority, and thus her veto could have been easily overridden. The Pine Tree State now joins North Carolina, Nebraska, and New Mexico as the only states that require a criminal conviction before someone’s assets can be taken.
What makes Maine’s legislation particularly appealing is that it also ends the state’s participation in the federal government’s disturbingly named Equitable Sharing Program. This loophole allows local and state law enforcement agencies—even in states where civil asset forfeiture has been outlawed—to partner with federal agencies on civil forfeiture cases. The local agencies get to keep around 80 percent of the proceeds from the seizures, creating a monetary incentive for police to enter into this partnership and circumvent state law.
For example, local officials in the town of Mooresville, North Carolina are in the midst of a long legal battle regarding a $17,000 seizure that occurred last November. In that case, police suspected Jermaine Sanders’s cash was made by selling drugs. However, Sanders was only charged with simple possession, and never faced sales or trafficking charges. The Mooresville Police Department then sent the money to Customs and Border Protection (CBP) through the Equitable Sharing Program, as a way to get around state-level restrictions. Judges have routinely stood up for Sanders in this case, including one judge who threatened to jail town officials if they didn’t return his money. But the fight is still going on, and Sanders’s case is not unique in North Carolina. In fiscal year 2020, North Carolina law enforcement agencies pulled in more than $6.6 million in proceeds through this program. Since 2000, that number is more than $293 million.
Likewise, other states that have ended state-level forfeitures have still seen massive money hauls through the Equitable Sharing Program. In the same twenty-year period, New Mexico has made $51 million in profits and Nebraska has pulled in more than $83 million. By comparison, Maine has been using this policy less than other states, bringing in just $17 million since 2000. Still, Maine’s decision to close the equitable sharing loophole, in addition to banning state-level civil forfeitures, is a huge win for civil liberties and the rule of law.
Other states, and federal agencies, could learn from Maine’s legislation. In order to truly protect citizens against civil asset forfeiture abuse, simply banning it isn’t enough. Until states choose to terminate their partnership with the federal government, or the Department of Justice chooses to end the Equitable Sharing Program nationwide, abuse will continue.