Here’s what we learned from enacting and defending a modest reform.
A national movement to reform “civil forfeiture” is underway. In many states, current policy allows the government to confiscate property on the grounds that it is connected to a crime — without ever convicting anyone of the crime. In court, a lower burden of proof applies in these civil cases than in criminal cases, even when valuable property such as a vehicle is at stake.
Twenty-nine states have reformed their civil-forfeiture laws since 2014. Fifteen states now require a criminal conviction for most or all forfeiture cases. And the recent skirmish over forfeiture laws here in Mississippi — a “law and order” state by any measure — illustrated that the voting public does not believe there is a contradiction between upholding due process and enforcing the law.
In 2018, the Mississippi legislature allowed the law authorizing one especially troubling type of civil forfeiture, known as “administrative forfeiture,” to sunset. With administrative forfeiture, law-enforcement agencies in Mississippi could take and keep property worth $20,000 or less, so long as they believed it was connected to drug crime, simply by obtaining a warrant and providing a notice to the owner. If the owner did not file suit within 30 days, the property was automatically forfeited to the agency. And given that almost half of all administrative-forfeiture cases involved property worth less than $1,000, it was unrealistic and outrageous to expect property owners to incur court costs and attorney’s fees to bring those cases to court on their own.
In 2019 there was a concerted campaign to bring back the old regime — but it met with pushback led by liberty-minded conservative legislators and my colleagues at the Mississippi Justice Institute, the legal arm of the conservative Mississippi Center for Public Policy.
Keeping administrative forfeiture off the books was a modest reform. It simply ensured that all forfeiture cases go to court for a final adjudication. It did not affect criminal forfeiture, which is when authorities keep property after a criminal conviction. It did not even affect ordinary civil forfeiture, in which agencies keep property after filing suit and proving in a civil court that the property was connected to a drug crime. When asked, most citizens seem to believe that is the least the government should do before it gets to keep your iPhone, your cash, or your truck.
But that did not keep the law’s advocates from painting a doomsday picture of life in Mississippi after the demise of administrative forfeiture. One elected leader declared that drug dealers would move into Mississippi to “get a better deal.” An official for a state police agency took to the airwaves to warn, inaccurately, that drug money would have to be returned to convicted drug dealers after they got out of prison. Officials bluntly advised the public that opponents of changing the law back were “anti–law enforcement” and “pro–drug dealer.” Dozens of police chiefs and sheriffs canvassed the state capitol in full uniform to warn against ending the practice.
The message to legislators was clear: Oppose administrative forfeiture and you oppose law enforcement as a whole. The message to citizens was even more ominous: Choose between your rights and your safety.
Despite all of this, Mississippians made it clear they were overwhelmingly opposed to reinstating administrative forfeiture. Legislators were inundated with calls and emails from concerned citizens. Social media was awash in opposition to reauthorizing the practice. Callers flooded radio stations asking how this could ever have even been the law in the first place. Ultimately, Mississippi legislators listened to the voices of these ordinary citizens. The effort to reauthorize administrative forfeiture did not even receive enough votes to move out of committee.
The lesson for elected leaders in states still weighing forfeiture reforms is this: Don’t fall for false dichotomies. Trust your citizens. They understand that you can support strengthening constitutional rights and also support law enforcement. If you are brave enough to start the conversation, and to stand your ground, you may be surprised how many will stand with you.
This column appeared in National Review on February 13, 2019.