There is a mailer that was sent out by the “Rasheed for Prosecuting Attorney” campaign that states, “Jefferson County Assistant Prosecuting Attorney Hassan Rasheed has netted over $500,000 in forfeited funds. Hassan Rasheed gets results. As our lead felony prosecutor, Hassan Rasheed’s work has brought more than half a million dollars into Jefferson County to offset tax dollars.” If true, this sounds like a windfall for the county.

I’m not going to criticize Mr. Rasheed for doing his job, but his campaign literature shines a spotlight on a current hot button issue: Civil Asset Forfeiture. On the surface, Civil Asset Forfeiture appears to be a “social justice” advocate’s dream. The government seizes the assets of criminals and converts them into contributions to the public coffers. Especially the assets of drug dealers. Who could possibly disagree with that?

In an article that appeared in the Washington Post in May, Ashley Balcerzak of the Center for Public Integrity writes, “Maryland Gov. Larry Hogan on Thursday became the latest state leader to sign contentious legislation restricting civil asset forfeiture — the process that allows police to seize and keep property suspected of being connected to illegal activity without having to convict, or even charge, the owner with a crime.” She continues, “Some 50 bills have been floated in at least 22 states this year to limit civil forfeiture. Nine states have passed some form of reform law…Eleven bills are pending in seven states.”

This is not a partisan issue. According to Balcerzak, the anti-forfeiture coalition is a “grouping of strange political bedfellows” that include the conservative American Legislative Exchange Council, the libertarian Institute for Justice and what she calls “traditionally liberal players” like Common Cause and the American Civil Liberties Union. Quite a diverse group distributed across the entire political spectrum. Model legislation is provided to lawmakers “that would bar asset forfeiture in civil, not criminal, proceedings.” She says that, “the odds are stacked against property owners in civil forfeiture because they must provide their own attorneys and the government does not have to meet the same burden of proof as in criminal cases.” In other words, your property remains in government hands until you prove that it hasn’t been involved in a crime. Guilty until proven innocent.

The Institute for Justice says this about our state, “West Virginia earned among the worst grades in the nation for its civil forfeiture laws and practices according to IJ’s rankings. The government must demonstrate that property is related to a crime and subject to forfeiture by a mere preponderance of the evidence, a standard much easier for law enforcement than proving criminal guilt beyond a reasonable doubt. And the burden is on owners to prove their property innocent, making the property effectively guilty until proven innocent. When money is seized and forfeited, all of the proceeds go to law enforcement: 10 percent goes to the prosecuting attorney’s office, and 90 percent goes to a law enforcement investigation fund.”

West Virginia is not alone. According to the Cato Institute, “Under state and federal law, police departments can seize and keep property that is suspected of involvement in criminal activity. Unlike criminal asset forfeiture, however, with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to permanently lose her cash, car, home, or other property.” It cites the Institute for Justice and their rankings saying that “most state laws are written in such a way as to encourage police agents to pursue profit instead of seeking the neutral administration of justice. The report grades each state and the federal government on its forfeiture laws and other measures of abuse. The results are appalling: Six states earned an F and 29 states and the federal government received a grade of D.” West Virginia earned a D-.

There are many examples of governments gone wild with regard to civil asset forfeiture. One of the better known is that of Russ Casswell, owner of the Casswell Motel in Tewksbury Massachusetts. The motel was built by his father in 1955. According to the Wall Street Journal in 2013, “The government argued the property, known as the Motel Caswell, was forfeitable because it has been connected to criminal activity, in this case 15 drug-related incidents that took place between 1994 and 2008. The Caswell family, owners of the motel through a trust, said it had nothing do with the drug activities.” By that standard, there might be quite a number of motels that could be confiscated. How is a motel owner to prevent criminal activity from occurring on premises without violating a customer’s right to privacy?

15 out of more than 125,000 room rentals. 15 incidents that a federal judge eventually agreed were beyond the owners’ control. The judge’s decision sided with Casswell, putting an end to the government’s attempts to seize the property. During depositions, a government agent from the DEA admitted that he had been tasked to find properties to seize. He further admitted that he looked for properties with equity of $50,000 and higher.

In Philadelphia, there were two particularly heinous cases. One family had their home seized because their 22 year old son had sold $40 worth of drugs without their knowledge. A disabled woman had her house seized because, unbeknownst to her, her husband had sold marijuana out of the house. In both cases, public outcry convinced authorities to back down. In all three, IJ intervened.

There have been many cases reported where cash has been seized from individuals where no charges have been filed amounting to billions of dollars; the reasoning being that people use cash only for drug deals. As a result, there is now legislation wending its way through congress to implement “civil asset forfeiture reform”. It’s called the Due Process Act and would end some of the more egregious abuses on the federal level. And as aforementioned, there are 22 states this year with pending legislation to curb abuses.

Regarding West Virginia, the Institute for Justice recommends that, “first, law enforcement should be required to convict people before taking their property. Law enforcement agencies could still prosecute criminals and forfeit their ill-gotten possessions—but the rights of innocent property owners would be protected. Second, police and prosecutors shouldn’t be paid on commission. To end the perverse profit incentive, forfeiture revenue must be placed in a neutral fund, like a state’s general fund. It should also be tracked and reported so law enforcement is held publicly accountable.”

The recommendation regarding placing the revenue in a neutral fund like the state’s general fund is a good one. One of the reforms implemented by Attorney General Patrick Morrisey shortly after taking office did just that. His predecessor kept all funds collected in judgments “in house”, in a department account. By contrast, Morrisey has turned over millions of dollars collected in judgments to the state’s general fund.

With state and local governments experiencing budgetary shortfalls, the temptation to generate revenue through civil asset forfeiture will increase. I think it’s astonishing that we need laws to protect citizens from this sort of government abuse. Our need to curb drug abuse -and we certainly need to find solutions to that problem – should not allow government to trample property rights. Property rights are a cornerstone of civilization.

In our Constitution, in the Fourth Amendment of the Bill of Rights, it says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Any questions?