Why Ohio Police can take your assets without a criminal charge

Do you forfeit?

By Sarah Sidlow

Photo: Jay McDonald, president of Ohio Fraternal Order of Police

 

Assets. We love to flaunt them; we love to hold on to them. And sometimes, apparently, the government likes to grab them. But a Columbus-based nonpartisan coalition is pushing back on the laws that allow police to hold onto a person’s property, even when the person hasn’t been charged with a crime.

It’s called asset forfeiture, and it works like this: under state and federal law, government agencies (like police) are able to take private property from citizens who have been charged with a crime (criminal asset forfeiture), as well as those who have been “suspected” of a crime (civil asset forfeiture). In Ohio, the same is true: the government can legally take away someone’s property based on the suspicion that the property was involved in a crime—even if the owner never faces criminal charges.

You may be asking, “How can the police take my stuff if I haven’t been charged for a crime?” And you wouldn’t be alone.

Civil Forfeiture 101

Civil asset forfeiture doesn’t have the same constitutional protections as criminal forfeiture—which means you don’t have to be proven guilty for your assets to be seized. Instead, government agencies treat the object—not the person—as if it has been charged with a crime. Think: Nebraska v. One 1970 2-Door Sedan Rambler (Gremlin) or State of Texas v. One Gold Crucifix (these are actual case names). In these cases, the Gold Crucifix, for example, is determined to be the guilty party and is confiscated without the protections afforded to the criminally accused.

While the history of civil forfeiture dates back to the Middle Ages, the United States took its cues from (who else) the Brits. Specifically, the British Navigation Acts of the 17th century, which demanded that all goods imported to or exported from Britain be transported on British vessels. If that wasn’t done, the ship’s cargo (and even the ship itself) would simply be taken by force and added to the king’s possessions.

Following British example, the very first-ever Congress of the United States established forfeiture as an acceptable means of collecting customs duties. What’s the point of all this? The leeway for what could be seized in a civil forfeiture situation started modestly enough—British ships, customs fees, and things pertaining to piracy law. But in the 1980s, during the
infamous War on Drugs, the prizes up for grabs in civil cases exploded. There are now laws in 42 states that allow agencies to share directly in the profits they obtain by civil forfeiture—and it’s a pretty far cry from shipping vessels.

Nationally, complaints have grown over abuses of the process, in which prosecutors and law-enforcement groups typically divvy up assets taken from a person suspected of a crime.

Ohio says ‘no’

To many, there’s a logical disconnect between the idea of a judge finding you guilty of a crime, and a police officer finding you guilty enough to have your stuff taken away. If you don’t have enough evidence for a conviction, they argue, you don’t have enough evidence for a confiscation.

“In my eyes—and in the eyes of many of the organizations supporting this legislation—that is an affront to the most basic principle of our criminal justice system: that you are innocent until proven guilty,” Ohio State Rep. Robert McColley says.

“Property owners deserve vastly more protections for their property,” says Jenna Moll, deputy director for the U.S. Justice Action Network. “Under the current system in Ohio, residents in possession of cash, cars, real estate, and other personal property are at risk of having that property seized by the government based on no more than a suspicion of wrongdoing.”

Inherent in this legal system, apparently, is the disenfranchisement of low-income individuals and people of color, who are disproportionately affected by civil forfeiture. In these cases, property owners may struggle to afford the legal representation necessary to keep their stuff or get it back if it’s been confiscated. Especially because in Ohio, a person subject to civil forfeiture doesn’t have the same Constitutional right to an attorney afforded to a person facing a criminal case. (This probably refers back to the legal idea that in civil forfeiture, it isn’t the person on trial, but the object.)

Is this a sign of a biased justice system? Many argue, “Well, yeah.”

“The maxim, ‘innocent until proven guilty,’ should be incontrovertible anytime the government makes an accusation of criminal behavior,” Moll says. “The current system of forfeiture flips that rock solid notion on its head and forces innocent property owners to attempt to prove their own property innocent—a rather difficult task for anyone.”

Adding to the intrigue is the lack and inconsistency of civil forfeiture police information available to the public. According to the Institute of Justice, 14 states and the federal government make any forfeiture information accessible to anyone online.

But in Columbus, a change is brewing. Conservatives and liberals are actively and successfully joining forces to overhaul Ohio’s civil forfeiture system. Supporters of reform include the Buckeye Institute, ACLU of Ohio, NAACP, FreedomWorks, Libertarian Party, and others, who have been arguing for years that it’s time for a change.

And House Bill 347, with Rep. McColley as its primary sponsor, might be that change.

“We’re not alleging that anyone is widely abusing these practices,” McColley says. “It’s just that Ohio’s law isn’t aligning with the basic principles that we would hope it would align with.”

As written, it would limit when civil asset forfeiture can be used, without obtaining a criminal conviction, to cases involving property worth more than $25,000. Forfeiture could still be used in smaller dollar cases if the property goes unclaimed, the owner is dead or unable to be brought to justice, or is indicted for a felony. In May, in an overwhelming 72-25 vote, the Ohio House said, “Yep, that sounds good.”

And, apparently, so did an overwhelming nonpartisan majority of Ohioans. According to polling conducted by the U.S. Justice Action Network, 81 percent of Ohioans agree that the current laws require major reforms. While most Ohioans are not familiar with the process, after learning more about existing civil asset forfeiture legislation, the breakdown looked like this: 83 percent of Republicans, 87 percent of Democrats, and 74 percent of independents said, “Count us in!”

McColley notes even judges at the state level, those tasked with maintaining a neutral outlook on legal proceedings, on the whole say it’s time for an update.

A point of clarification: there’s a difference between “seizure” and “forfeiture.” Seizure is the act of law enforcement confiscating property they believe to be involved in criminal activity. Forfeiture is the judicial process that follows—the one that either allows the state to keep the stuff they’ve already taken or tells the state to return the property to its original owner.

HB347 wouldn’t affect the seizure portion of law enforcement: if an officer with probable cause believes property is associated with a crime, the officer can take that property.

“This bill is not aimed at law enforcement,” McColley says. “They will be able to proceed with the status quo and then make the quick decisions they need to make. We’re changing the judicial system; the process by which an individual would ultimately be able to re-obtain their property from law enforcement.”

In fact, there’s one major Ohio population center that’s already doing it right, according to McColley.

“Hamilton County utilizes civil forfeiture completely post-conviction,” he says. “They file a civil case in conjunction with a criminal case. That’s a complement to the criminal system. The person has had their day in court with all due process given to them. They’ve done so as a large population center, and very successfully. A lot of people are looking to Hamilton County as a model for how it should be working statewide.”

‘A solution in search of a problem’?

But police and prosecutors are mostly not hearing it.

Prosecutors and some law-enforcement agencies claim civil asset forfeiture is a critical tool in stopping crime. Essentially, taking cash and valuable possessions away from criminals, including drug dealers, human traffickers, and terrorists, makes it harder for the “bad guys” to keep up their operations.

“Civil asset forfeiture is a tool used by law enforcement to negatively impact the profits of criminal enterprises making it more difficult to do business in Ohio,” says Jay McDonald, president of the Ohio Fraternal order of Police. “[It] has been used countless times to seize the funds of known drug traffickers, thereby hampering their ability to buy and sell more poison in our communities.”

And it’s important, McDonald says, for police to be able to use that tool on a person who hasn’t seen a criminal conviction.

Let’s set the scene: a person is caught with a big chunk of cash, a scale, a lot of small baggies, a customer list, and a lingering smell of drugs. But no actual drugs. Can we assume the wad of cash is probably the result of some drug dealing of the illegal variety? Probably. But with no drugs in the car at the time, it’s hard to pin the person with an actual conviction. That’s where we hit ‘em where it hurts: the wallet.

In fact, if law enforcement is no longer able to seize assets in this way, it may actually make Ohio a more attractive route for things like drugs and human trafficking because the risk of losing it all is much lower than in other states.

According to McDonald, Ohio forfeiting this crime-fighting tool in the midst of its ongoing battle against heroin could have lasting consequences.

“We are in the throes of an unprecedented drug epidemic that is costing Ohio thousands of lives a year,” McDonald says. “[Yet] the Ohio legislature continues to go soft on crime by allowing cartels to keep their profits.”

Another cause for concern is the potential hit to police funding that could result from the absence of seized assets. HB347 could put a stranglehold on law-enforcement budgets, which often use the funds to pay for police vehicles, furniture, equipment, trainings, and upgraded technology.

Statewide, police agencies and prosecutors could stand to lose millions of dollars a year, according to an analysis from the Legislative Service Commission.

Moreover, many argue that current Ohio law already contains plenty of protections against police abuse of civil forfeiture laws, and that abuses of the law have either been at the federal level, or in other states—a.k.a., not arenas that would be affected by a change to Ohio law. “There was zero testimony in the Statehouse about Ohio instances of abuse of the civil forfeiture process,” McDonald contends. “Abuses of the civil forfeiture process are from other states or the federal government. In Ohio, we have a judicial review of all civil forfeitures and the proponents have failed to give any examples of so-called abuses.”
McDonald calls this “a solution in search of a problem.”

But McColley maintains the rounds of changes made to HB347 reflect the viewpoints of law enforcement and prosecutors. “We went a long way to guarantee that they would be able to continue doing what they do,” he says. “We truly appreciate and respect all that they do for us on a daily basis.

So, now what?

House Bill 347 has passed the Ohio House and now awaits Senate approval. Backers are confident there is enough support for the bill to be passed out of committee.

In the event it does pass, the law will take effect 90 days after it’s signed.

Once in effect, Ohio’s comprehensive legislation could become an example for other states reconsidering asset forfeiture.

According to Moll, there are numerous efforts across the country to tighten up forfeiture procedure. New Mexico, Nevada, Montana, Nebraska, D.C., New Hampshire, and Florida require a conviction prior to forfeiture (or require proof of criminal activity beyond a reasonable doubt, the same standard of proof for a conviction). In two legislative sessions, Maryland has passed separate bills to fine tune their system; Michigan has raised the burden of proof and expanded reporting data; and Georgia, Virginia, and Minnesota have each taken various steps towards reform, as well.

And in Congress, federal legislation on this topic has also been introduced. As we enter into an uncertain 2017, the popularity of this legislation on both sides of the aisle is certainly worth emphasizing.

“American voters expect their property to be treated differently than the profits of convicted criminals, and they want forfeiture to include due process protections for them and their neighbors,” Moll says. “The call for reform is rarely that clear and that unified.”

Rep. McColley believes the unified support stems from the fact that at the heart of the issue is justice for all.

“This is not a democratic or republican issue,” he says. “This is not a conservative issue or a liberal issue. It’s a basic fairness and equity issue.”

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Sarah Sidlow
Reach DCP editor Sarah Sidlow at SarahSidlow@DaytonCityPaper.com.

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