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Sunday, December 16th, 2018Last Update: Tuesday, October 30th, 2018 07:58:08 PM

Federal Government Suspends Asset Forfeiture Program

By: Constitution Staff

Federal Government Suspends Asset Forfeiture Program

The Department of Justice has criticized some of the Oklahoma Highway Patrol's spending of those funds.

State Senator Kyle Loveless (R-Oklahoma City) who is working to improve Oklahoma's forfeiture laws said the recent decision by the U.S. Department of Justice to suspend the Federal Equitable Sharing Program was a step in the right direction, but reform of state statutes is still needed. The federal program allowed state and local law enforcement agencies to partner with federal law enforcement in prosecuting civil asset forfeitures under federal law instead of using state law. The program allowed local agencies to receive up to 80 percent of the proceeds from those forfeitures.

"I am working to reform Oklahoma's state laws regarding forfeiture to make them align with the tenets of our constitution and proper due process," said Sen. Loveless. "The Federal Equitable Sharing Program is one piece of a much larger issue with forfeiture overall. I am pleased that this program has been suspended; however, we must reform our state laws as we have seen the whims of Washington DC change overnight."

According to data from Oklahoma Watch, more than 100 Oklahoma law enforcement agencies received $47.5 million in equitable sharing funds in the last decade, with the Oklahoma Highway Patrol receiving the vast majority of the money. The Department of Justice has criticized some of the Oklahoma Highway Patrol's spending of those funds.

Unlike criminal asset forfeiture, civil asset forfeiture does not require a conviction. In fact, the person who has their property taken under civil asset forfeiture might not even be charged with a crime. Over a five-year period, law enforcement officials in 12 Oklahoma Counties seized more than $6 million in cash, almost $4 million of which was taken without any criminal charge. Records indicate that of the $6.1 million dollars taken, only $2.1 million was seized from people who were actually charged with a crime, meaning more than 65 percent of the cash seized was taken without any criminal charges being filed.

"Civil forfeiture is rife with abuse. The more attention that is brought to the practice, the more stories that have come to light. There are several parts to my reform package but the most critical is removing the direct profit agencies receive from forfeitures," Loveless said.

Essentially, property, and usually cash, can be seized during a traffic stop based solely on a mere suspicion that it was involved in or profit from criminal activity. Cash isn't the only property subject to seizure. Oklahoma law also allows for nearly any item that can be assumed guilty of involvement in a crime including cars, land, cell phones and even guns.

In the last legislative session, Loveless introduced Senate Bill 838, the Personal Asset Protection Act. This legislation would fundamentally reform asset forfeiture to realign the process with its intended goal of stopping criminal activity-all while protecting property rights and individual liberty. He has reintroduced the legislation as a package which includes three stand-alone bills and one omnibus reform bill.

There are four main objectives of Loveless's legislation. First, it would guarantee that the owner and their property are innocent until proven guilty. This foundational principle of our justice system is ignored by Oklahoma's current forfeiture laws. Secondly, the bill will require a conviction before property can be forfeited. The new package provides five exemptions to this requirement including the death of the owner or the owner was given immunity as part of a plea agreement. Third, it would raise the burden of proof to a higher threshold. The current law only requires a preponderance of the evidence, one of the lowest levels. The legislation would raise that bar to clear and convincing; requiring the government to have more evidence than suspicion. Finally, it would remove the financial incentive law enforcement currently has to use forfeiture. Currently, proceeds from forfeiture can be used by the seizing agency. Allowing an agency to keep what it takes breeds a culture of want and need instead of a culture of enforcement.

"As more and more Oklahomans hear about the experiences of law-abiding citizens who've had their property seized, they recognize current forfeiture practices as unconstitutional and un-American. This is an unjust system that allows innocent people's property to be taken even though they were not charged or convicted of any crime. I am looking forward to working with members of law enforcement and my legislative colleagues to get a package of reforms to the governor's desk this coming legislative session," said Loveless.

Lee McGrath of the Legislative Council for the Institute for Justice commented on the federal action: "State legislators from Florida to Ohio to California should take notice of law enforcement's reaction to the DOJ's announcement. Many police, sheriffs and prosecutors want to circumvent state laws because outsourcing forfeiture litigation to the federal government is lucrative. State lawmakers should enact an anti-circumvention provision that respects federalism and refocuses law enforcement's attention on stopping crime by allowing only seizures greater than $50,000 to be forfeited under federal law."

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