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Monday, May 27th, 2019Last Update: Tuesday, May 7th, 2019 11:03:32 AM

Civil Asset Forfeiture and Oklahoma's State Constitution

By: Steve Byas

It is remarkable how when one challenges the practice of government agents taking private property, without conviction of any crime, under the practice known as “civil asset forfeiture” (CAF), the usual response from its defenders is that it is “needed” in the war on drugs.

While CAF is used not just to combat the drug trade, but also other alleged violations of law, its defenders certainly concentrate on its supposed positive role in fighting drug dealing. Sadly, support for CAF is almost universal among law enforcement officers like sheriffs and district attorneys, which makes me wonder if they value constitutional rights. Stories of innocent people, who have nothing whatsoever to do with drug-dealing, having their property seized by a law enforcement officer, do not seem to matter to them.

After all, they are fighting a “war” against drugs, and I suppose in a war, there is going to be “collateral damage.” It is unfortunate that innocent people sometimes lose their personal property, but the scourge of drugs is so severe that we must continue with CAF, seems to be their position.

Abuse of drugs is a bad deal, no doubt. But so is murder, robbery, and rape. And we still afford due process of law to persons merely accused of murder, robbery, and rape. Just because the crime is serious, does not mean that we take away someone’s life, liberty or property without due process of law. Surely, if police did not have to worry about due process of law, search warrants, and the like, they could solve more crimes by invading private homes at random.

But do we want to live in that kind of a country?

I know that I do not. Neither did the Founding Fathers, as we can see from the U.S. Bill of Rights, a series of amendments primarily designed to protect the states and individual Americans from the power of the federal government.

The Founding Fathers of Oklahoma also believed in constitutionally-protected life, liberty and property.

For example, in Section II, Article 7 of Oklahoma’s state Constitution, adopted in 1907, it clearly states, “No person shall be deprived of life, liberty, or property, without due process of law” That would seem to forbid CAF, without conviction, in Oklahoma.

Then there is Section II, Article 9, which states, “Excessive bail shall not be required, nor excessive fines imposed [emphasis added].” This would also seem to prohibit CAF without conviction. I have read of one case (not in Oklahoma) in which an entire hotel was seized because a drug deal had taken place in one room. That seems to be the very definition of an “excessive fine.” Of course, governments violate this principle all the time – witness the threats of one million dollar a day fines and such until a person gives in to this or that edict by government – that is an “excessive fine.” Thankfully, not only does the federal Constitution prohibit excessive fines, the men who wrote our state Constitution also prohibited it.

Finally, I would draw your attention to Section II, Article 19 of the state Constitution, which reads, “The right of trial by jury shall be and remain inviolate ... in criminal cases wherein punishment for the offense charged is by fine only, not exceeding one thousand five hundred dollars.”

Taking someone’s car or house, before any conviction and without a jury trial, is clearly a violation of this part of the Oklahoma Constitution, as well. Presently, under the way CAF is used in this state, a law enforcement officer can seize property upon his own suspicion, then the burden of proof shifts to the accused. Instead of a jury finding a person guilty of a crime and the property then being forfeited, under CAF, the property is seized and the person who has had that property seized must then prove that the property was not used in the commission of a crime.

Proving a negative is often impossible, but that is what a person is expected to do under CAF.

I would like to address this directly to our state legislators. You took an oath to this state Constitution, not to your local sheriff or local district attorney. You may not like what drugs can do to destroy lives – I don’t, either. I also don’t like what murder, robbery, and rape can do to destroy innocent lives, and we do not cast aside constitutional protections in those cases.

If you are not going to do something to make CAF work within the clear wording of the Constitution, will you please tell me how taking someone’s property, without conviction, follows that clear wording of the Constitution?

If you cannot do that, and you continue to support CAF, then you lied when you took that oath of office.

Steve Byas is editor of the Oklahoma Constitution newspaper. He may be contacted at:

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