“This is State government, sir”: Michigan gets one step closer to Asset Forfeiture Reform
Yesterday, the Michigan Senate Judiciary Committee demonstrated bold legislative initiative by unexpectedly voting a slew of civil asset forfeiture reform bills out of committee.
The committee heard testimonies from national advocacy organizations on both sides of the aisle as well as law enforcement. Although there was some token opposition from state law enforcement, seven of the eight bills passed the committee unanimously.
At the hearing, US Justice Action Network Executive Director Holly Harris explained the convoluted history of asset forfeiture in America,
Centuries ago, civil asset forfeiture was actually used as a means to seize assets from pirates. In the 1980s, asset forfeiture was expanded to seize assets from international drug kingpins. But now, law enforcement is using civil asset forfeiture to seize cars and cash from average citizens who are never even charged with crimes. And here in Michigan, far too many innocent property owners have found themselves entangled in a flawed process…We are a long way from pirates and kingpins.
Jorge Marin, Criminal Justice Specialist at Americans for Tax Reform, also congratulated the Michigan Association of Police Organizations for their endorsement of the proposals,
Fortunately, this is a uniting issue. The Michigan Association of Police Organizations understands full well that bad laws reflect poorly on the vast majority of police officers; men and women who genuinely want to protect their communities and have done so with distinction. The Package of laws under consideration would strengthen the reporting requirements for forfeitures. This would be a massive step in the right direction.
He further explained the importance of protecting the due process of law and how civil asset forfeiture laws infringe upon that,
You may be wondering what taxes have to do with civil asset forfeiture. Simply put, tax reform is simply a means to an end: the end being the protection and expansion of individual freedom. For this reason we have flagged asset forfeiture as an egregious threat to due process and legislative accountability of the nation’s crucial police force and their budgets.
Yesterday ATR released an official endorsement of Michigan’s civil asset forfeiture legislation.
After being asked about what the federal government was doing with respects to asset forfeiture by an ill-fated prosecutor, Committee Chairman Rick Jones shot back “this is state government, sir,” demonstrating how the states are leading on this issue despite what the federal government is doing.
Americans for Tax Reform is supportive of the Senate Judiciary Committee decision to move forward with this legislation. We urge state legislators across the country to take Michigan's lead.
Tune In to the Bipartisan Summit on Fair Justice
We all know the statistics. The United States is drowning in one of the world’s most extensive prison populations… and budgets. Americans for Tax Reform is committed to reducing the footprint of the government in people’s lives as much as possible; this is why we are joining our efforts with the Coalition for Public Safety, and the parties present here today.
In order to secure the crime reductions we have been able to achieve in recent years, and expand them, we are looking to apply the proven reforms which have been so successful at the state level. By encouraging better sentencing and more effective alternatives to incarceration, America can provide justice and fiscal sanity simultaneously.
Momentum is Building for Reform: Speaker Boehner Steps Up
Speaker of the House John Boehner (R-Ohio) made a strong statement in favor of criminal justice reform. On July 16, the Speaker made clear that America has too many people incarcerated. People who do not necessarily belong there.
National leaders are becoming more vocal about the need to improve the justice system across the nation. Although the United States has one of the most extensive prison systems in the world, two thirds of released prisoners can expect to go back to jail. Speaker Boehner is right to call attention to our wasteful criminal system.
We are at a point where counting the number of federal crimes is close to impossible. Thanks to everything from draconian crimes to draconian sentencing our prison population has reached unacceptable levels. Moreover, the people who go through the system are more likely to return to prison that not. According to the speaker,
“We’ve got a lot of people in prison, frankly, that really… don't need to be there. It's expensive. The housed prisoners, sometimes… are in there under what I'll call flimsy reasons.”
The SAFE Justice Act, which Speaker Boehner supported in his remarks, tackles the most pressing problems facing our courts and prisons. By focusing mandatory minimums for certain offenses on the most dangerous criminals, SAFE Justice targets police resources on the most pressing offenders. The bill also reduces federal over-criminalization, and increases the use of mens rea-in order to make sure that an individual was aware of whether his or her actions are criminal.
These measures will make our streets safer, and our budgets smaller.
Americans for Tax Reform is committed to seeing a smaller, more effective government in all its forms. Leaders in Congress should apply the principles in the SAFE Justice Act to reign in the excesses of our criminal Justice system. Speaker Boehner took an important step today.
Oklahoma Senator Criticized for Defending People's Rights
In Oklahoma, one state senator has taken it upon himself to tackle a controversial practice. Senator Kyle Loveless (R-Oklahoma City) is waging war on his state’s broken civil asset forfeiture laws. In Oklahoma—which currently has a D in the Institute for Justice’s scorecard—authorities can take and keep a person’s property based on a suspicion of wrongdoing.
One critic was quick to attack the Senator. “This is without a doubt the single worst, most damning, most asinine and devastating bill I have ever seen for this State and local law enforcement,” fumed Randall Edwards, Canadian County Sheriff, in an email to the press.
Edwards went on to say, “I don't know why they or anyone else in their right mind would think the state would been titled to my agencies proceeds from [civil asset forfeiture].”
Loveless can expect a fight over his proposed legislation.
The new bill – SB 838 – would require law enforcement to file a conviction before any assets are forfeited to authorities. It would also elevate the burden of proof from ‘preponderance of evidence’ to ‘clear and convincing’ so as to shift the burden away from the innocent citizen. Once assets are seized, a trial by jury is guaranteed to resolve the case. SB 838 also takes away part of the profit incentive for law enforcement by requiring all assets to be attributed to the General Revenue Fund.
The goal is to prevent the abuse of asset forfeiture laws in the state, and contrary to what Sheriff Edwards may say, there is abuse. Take the case of Desert Snow—a private intelligence network based in Oklahoma that aids local police in seizing drugs and cash during roadside stops. In 2013, employees of Desert snow were hired as interdiction units with the power to seize assets by local authorities. These individuals were allowed to keep some of the proceeds from the assets they seized.
After a District Court found that dozens of asset forfeiture cases were based on these private interdiction units he threw out the cases and threatened Davis with jail if he carried on.
However, that is not the worst of Desert Snow or its sister organization, Black Asphalt. The Washington Post reports that “Agencies with police known to be participating in the Black Asphalt intelligence network have seen a 32 percent jump in seizures beginning in 2005,” a drastic jump for a process which is only challenged one sixth of the time.
Sen. Loveless’ bill is only one of the many efforts to curb these excesses.
States like Iowa and Kansas have outlawed the use of Black Asphalt information and a Nebraska prosecutor warned that the company’s methods infringe upon civil liberties. Oklahoma defense attorney Adam Banner described Black Asphalt’s activities as a ‘free-for-all cash grab’.
With all due respect to Sheriff Edwards, all too often “your agency’s profits” (excuse the correction) come at the cost of due process. Who in their right mind would tolerate such an asinine regime?
Pennsylvania Should Vote YES on SB 869
Civil Asset Forfeiture, the controversial practice wherein the police can confiscate property without a warrant or conviction, is facing a much needed overhaul in Pennsylvania. Senators Mike Folmer and Anthony Williams have introduced SB 869, a bill which would bring Pennsylvania on par with states like New Mexico and Montana.
The Keystone State has struggled with asset forfeitures for too long. Though initially intentioned to prevent drug traffickers from keeping their profits, it has since metastasized into a law enforcement mechanism that creates incentives for police to take and keep property from people without charging them with a crime. Just in the last ten years, Pennsylvania has raked in more than $100 million from seized assets.
What’s more, people under the current regime are liable to lose their homes if someone (not necessarily the owners) does drugs on the property. Last year, a couple lost their house after police arrested their son for possessing “$40 worth of heroin.”
A review of the assets forfeited from 2011 to 2012 revealed that the median amount seized was around $180; not enough for people to go to court over. As a result, it is unusual for the forfeitures to be contested. Over 1,000 houses have already been taken by authorities over the course of a decade, to be used by the very organizations that took them.
The new law would upend that status quo.
Firstly, property would not be forfeited until the proprietor is convicted of a crime. This seemingly common-sense point is long overdue, and ensures that due process is observed when stripping someone of their belongings.
The next major development is the removal of any sort of profit incentive for the seizures. By directing the funds forfeited into the state’s general fund, the state legislature regains oversight over the assets that authorities seize.
Equitable sharing, which allows local police to circumvent state laws, is also curtailed by the new law. It is a federal procedure by which local police can use federal asset forfeiture rules to seize property and receive up to 80% of the value back.
By using equitable sharing, Pennsylvania authorities were able to score over $50 million from 2000 to 2008, racking up an average of almost $6 million per year. It is unjustifiable to have such a lax legal regime be imposed on states which may not want to be a part of the federal government’s asset forfeiture rules, and Pennsylvania has a shot at fixing that particular situation.
The effort to reform asset forfeiture has also been applauded by the Coalition for Public Safety, of which ATR is a member. Legislators in Pennsylvania should seize this opportunity to fix their asset forfeiture regime and set a precedent for other states looking to do the same.
Grover Norquist: "Audit the Pentagon"
Today, Congressman Michael Burgess (R-Texas) and Congresswoman Barbara Lee (D-Calif.) introduced an amendment to bring the Pentagon closer to the audit that it owes to the American taxpayer.
If the Pentagon is worried about the lack of funds for maintaining America’s arsenal, then the solution isn’t to break the nation’s finances, but to stop wasting money on projects which are “too big to fail.” Projects like the F-35, which consistently under-perform and increase in cost.
The amendment requires the Department of Defense to submit a list of the departments and agencies which are most prepared for a comprehensive audit. Americans for Tax Reform President Grover Norquist had this to say about the amendment:
All departments of the United States Government are audited--except the Pentagon. This is not acceptable. If the management of the Pentagon cannot pass an audit--get new management.
At a time when resources are scarce it is particularly important that we audit the Pentagon to reduce waste and the costs of mismanagement.
All Americans who want our nation strong and secure know that step one is to ensure that all available resources are being spent wisely. Every wasted dollar is a cut in our preparedness. An audit is the only way to begin to know how much is misspent.
Representative Burgess also weighed in on his amendment:
As the holder of the purse, Congress has a duty to demand transparency,” Rep. Burgess said. “Our amendment will provide Congress with concrete, concise information as to how close each part of DOD is to achieving the goal. No such list currently exists and Congress to date has not required it. This amendment corrects a crucial missing puzzle piece and allows the Congress to execute a chief governmental function: oversight. –Burgess
In a released statement from Representative Lee’s office, the Congresswoman also addresses taxpayer concerns:
Unauditable is unacceptable. It has been more than two decades since the Pentagon was required to undergo an audit and the Pentagon is still reporting that full audit-readiness is years off. This amendment, which also passed last year, requires a ranked list of all departments and agencies by their audit-readiness status. This list will empower Congress to make decisions on next steps to ensure auditability of the Pentagon,” said Congresswoman Lee. “We need greater sunlight and transparency so the American people know how their hard-earned tax dollars are being spent. It’s past time to end waste, fraud and abuse of taxpayer dollars in Pentagon spending.
The Pentagon’s books have remained closed for too long, the nation deserves a military establishment that demonstrates a culture of fiscal responsibility and efficiency. Representatives should strongly consider this proposal.
Montana Continues Trend on Asset Forfeiture
Montana can count itself in the growing group of states taking on civil asset forfeiture less than a month after New Mexico passed its lauded comprehensive reform. And though Montana’s legislation is not as exhaustive as New Mexico’s, it is nevertheless a giant step in the right direction.
Civil asset forfeiture is a controversial proceeding in which law enforcement authorities are allowed to confiscate property suspected of being used in a crime without a warrant or conviction. Property owners are then left with the options of hiring expensive legal help (for protracted civil proceedings) or writing off the lost property.
The property is then kept by the law enforcement agency that performed the seizure and can be used at their discretion: some argue that this creates an improper incentive for the agencies.
The new regime in Montana does away with the warrantless forfeiture component of the problem. HB 463—the enacted measure—will require a criminal conviction before the property is forfeited. Meaning that in order for the police to keep and use the money, they have to prove its connection with the crime.
The burden of proof on the government, and increasing the standard to “clear and convincing evidence,” gives innocent property owners expanded protections from overzealous forfeiture programs.
Civil asset Forfeiture has seen a dramatic increase of attention from both state legislators and the federal government. Montana has proven that it is prepared to put the interests of its citizens first and foremost. Hopefully this positive trend will continue to expand Fifth Amendment rights across the nation.
Oklahoma Slashes Mandatory Minimums
This week Oklahoma governor Mary Fallin signed HB 1518, a bill to reform the state’s minimum mandatory sentencing guidelines.
Far from giving a break to dangerous offenders, the Safety Valve Act gives judges discretion to give low level offenders less severe sentences on a case-by-case basis. Additionally, the act allows judges to place certain offenders into the mental health or drug treatment systems.
By allowing for this kind of sentencing nuance, the Sooner State hopes to rein in one of the highest incarceration rates in the nation. At 659 prisoners per 100,000 residents, Oklahoma has the third highest proportion of its population behind bars of any state.
There is a growing chorus of Red states reforming their prison systems. When Texas passed its own prison reforms in 2007, it saw a decline in their prison population, a massive decline in their crime rate, and savings of $2 billion. Not a bad start from any perspective. Likewise, Georgia saved hundreds of millions after its own reforms.
Combined with the recent easing of occupational licensing rules, Oklahoma now joins these states in the front lines of criminal justice reform. In her statement, Fallin assured Oklahomans that “Violent criminals will continue to be incarcerated, but the fact is that one in eleven Oklahomans serve time in prison at some point in their lives,” underscoring the urgency of prison population reduction.
Many of our current inmates,” Fallin continued, “are nonviolent offenders with drug abuse and alcohol problems; others have mental health issues. For some of these offenders, long sentences in state prisons increase the likelihood of escalated criminal behavior. This bill gives our judges the freedom they need to divert people who need treatment, rehabilitation and supervision to the appropriate facilities and programs.
Americans for Tax Reform would like to congratulate the Oklahoma legislature, which passed the reform by overwhelming margins, for their historic success. Hopefully, more states will follow suit as the modernization of America’s prisons continues.
The New Budget: Hits and Misses
Last week congressional Republicans reached an agreement on the budget for the year going forward. The proposal calls for reforms to struggling entitlement programs, clamps down on inefficient and ineffective government programs, and lays the groundwork for strong economic growth.
The most important aspect of any budget is whether it is balanced. The FY2016 conference agreement brings spending restraint to the federal government and creates a $32 billion surplus by 2024—meanwhile no new taxes are levied on individuals. This stands in stark contrast to the $1.44 trillion in new taxes requested in the president’s FY2016 budget.
The new Republican budget agreement also maintains the most important conservative victory in the last five years: the sequester caps. The FY2016 Budget maintains the spending restrictions mandated in the Budget Control Act of 2011, ensuring the continuation of the savings from discretionary spending. Here again the Republican budget agreement stands in stark contrast to the White House budget, which ignores 2011 sequester spending caps and raises spending through misleading promises, the Senate budget abides by federal law. It is important to keep these caps in place; caps that have stabilized federal spending since 2011 and will lead to $1.79 trillion in savings through 2021.
Moreover, the economic benefits of the agreement would help spur our sluggish economy. In total, $400 billion would be added directly into the economy over the next ten years, according to The Congressional Budget Office. After years of lackluster growth, it is time to enact fiscal policies that put the economy back to work.
Unfortunately, not everything about the deal is perfect. In order to appease some of the more hawkish legislators, the Overseas Contingency Operations Fund (OCO) has gotten a very generous increase. OCO is the fund that the pentagon uses to fund overseas engagement…theoretically. Though the Pentagon has requested $50.9 billion for OCO, the budget sets aside $96 billion for the same fund. This extra money will go to pad military budgets without ensuring an equivalent offset somewhere else in the budget.
Examples of OCO’s largesse abound. FY2016 has over $500 million set aside for construction projects that would only be relevant to fighting ISIS if the Air Force were to literally drop buildings (presumably flown over by multiple F-35s) on top of Mosul.
Using the Overseas Contingency Operations Fund as a way to skirt the Budget Control Act’s caps is disingenuous and unfair to taxpayers. Fortunately, there are redeeming qualities to be found in next year’s budget.
ATR Supports the FAIR Act
On April 14, 2015, Americans for Tax Reform sent a letter to Congress urging law makers to lend their support to the Fifth Amendment Integrity Restoration Act (FAIR Act). This landmark reform would effectively end most forms of the controversial practice of civil asset forfeiture at the federal level. States like New Mexico have already demonstrated that comprehensive reform is possible and popular, thus underscoring the urgency for federal reform.
The FAIR Act would be instrumental in restoring trust in our law enforcement officials; moreover it would ensure that those who break the law pay the penalty. Below is the full text of the letter:
Dear Senator Paul and Congressman Walberg,
I would like to extend my strong support for Senate Bill 255, the Fifth Amendment Integrity Restoration Act (FAIR Act). This proposal would be a monumental leap in the effort to reform the nation’s broken civil asset forfeiture system.
The current asset forfeiture system is broken. Since its expansion in 1984 there has been an explosive growth in the size of the Federal Asset forfeiture Fund. Between 2000 and 2013 alone, the fund grew from over $500 million to over $2 billion; funds that can be used at the discretion of the authorities who seized the property.
Most law enforcement officials are honest individuals who frequently put their own lives at risk to protect their communities. Nevertheless, innocent Americans should not be placed in a situation where their property can be confiscated without hope for due process. The FAIR Act manages to both restore constitutional guarantees to the American public and renovate public trust in the nation’s law enforcement.
The FAIR Act would first address federal budgetary incentives for authorities to seize property. The proposal eliminates the process of Equitable Sharing, which allows local and state law enforcement officials to use federal rules to seize assets. Additionally, the act transfers confiscated funds from the Federal Asset Forfeiture Fund into the general treasury, increasing oversight of the assets by Congress.
Authorities would also be required to prove guilt in order to keep the funds. This change would be coupled with an increase in the burden of proof required from the government to prove guilt. This fundamental change to the status quo would bolster public faith in the rule of law and assure Americans that criminals, not law-abiding civilians, pay the price for broken laws.
Furthermore, the Internal Revenue Service would be limited in their use of structuring laws when seizing money from people’s bank accounts. Structuring allows the IRS to take funds from a bank account when authorities suspect that deposits to the account are made in a way designed to avoid reporting laws. The FAIR Act would only allow forfeiture if the owner of the funds knowingly made the deposits in a way to avoid federal laws.
This new regime takes into account the need to punish law-breakers and the rights of citizens. Simply put, criminals should not enjoy the fruits of their bad behavior, and by requiring proof of wrongdoing we ensure that those who break the law pay up.
Moreover, the proposed reforms serve to bolster the credibility of law enforcement with their local communities. If law-abiding civilians are assured that there is no danger of their property being confiscated, confidence in the rule of law will be strengthened and officers will find it easier to gain the cooperation of their communities. I implore your colleagues to extend their own support for this important legislation. For more information, please contact Jorge Marin in my office at firstname.lastname@example.org.
Grover G. Norquist