The idea that the state can keep your property through forfeiture when you have not been convicted of a crime does not sit well with many people. And it doesn’t even do what its supporters like to promote.
The basis of civil asset forfeiture is formed around the idea that your property can be connected to a crime and forfeited to the state, whether you have been convicted of that crime or not. Supporters will often talk about the need to use civil asset forfeiture to deter large drug operations that may cross Interstates 10 or 20. But is that really happening in large numbers?
According to our analysis at Mississippi Center for Public Policy of the civil asset forfeiture database, only 12 percent of seizures have occurred along an interstate route over the past two years and the average seizure is valued at a little over $7,900.
While that is a relatively low number to begin with, there are several outliers that skew the numbers up. Ten of the seizures are of $100,000 or more and the sum of those adds up to a little over $2 million or 47 percent of all seizures. Those 10 seizures have an average value of $204,220, but only represent 2.1 percent of all seizures.
Removing the seizures of $100,000 or more lowers the average to $4,837. The average of the seizures with a total value of less than $50,000 is $4,274 and represents 97 percent of all seizures.
The vast majority of seizures are valued at less than $10,000, representing 84 percent of all seizures. Even smaller were 161 seizures for less than $1,000 or 34 percent of the total.
Cars and weapons remain the most popular items to be seized, but we also had video game consoles, televisions, and a collectible $5 bill.
The state has begun to slowly move in the right direction when it comes to civil asset forfeiture. A few years ago, the state mandated that all forfeitures be posted on a central database. This is the only reason we have a view into Mississippi’s civil asset forfeiture world.
And then in 2018, the legislature let administrative forfeiture die when the law authorizing the program was not renewed. Previously, administrative forfeiture allowed agents of the state to take property valued under $20,000 and forfeit it by merely obtaining a warrant and providing the individual with a notice.
A massive offensive was launched earlier this year to reinstate administrative forfeiture. Fortunately, those efforts were unsuccessful in the legislature.
Still, the bar remains low for forfeiting property. The state is still allowed to seize and keep property through civil forfeiture, a process that requires the state to go before a judge for an adjudication of whether the property should be forfeited, even if the owner does not file suit.
In reality, the cost to recover property, meaning attorney fees and court fees, is often higher than the value of the property forfeited, leaving little incentive to attempt to get your property back.
Seeing the unfairness in such a system, many states have begun to go further in protecting fundamental property and due-process rights. To date, 18 states require a criminal conviction to forfeit most or all types of property. And three states – Nebraska, New Mexico, and North Carolina – have abolished civil forfeiture entirely.
That is the direction in which Mississippi should continue to move. Criminals should not be allowed to keep their ill-gotten gains, but it should require a criminal conviction before the state can keep that property.
Because, save for a few outliers, rather than busting drug kingpins, law enforcement is more likely seizing iPhones, guns, or small amounts of cash.
The truth is that we don’t have to choose between supporting law enforcement or safeguarding civil liberties. We can protect our communities and our Constitutional rights.
This column appeared in the Meridian Star on December 12, 2019.