States Preserve Jury Rights with Asset Forfeiture Reform

Just yesterday, Governor Steve Bullock signed Montana’s HB 463, a civil asset forfeiture reform bill, into law, following in the footsteps of Governor Susana Martinez who signed New Mexico’s HB 560 in April. HB 463 was passed with only 8 representatives and 1 senator opposed in Montana, and HB 560 was passed unanimously through both houses of the New Mexico legislature. Both bills require a criminal conviction as a prerequisite for the state to seize property by asset forfeiture. The Institute for Justice had previously given both Montana and New Mexico grades of D+ for their forfeiture laws.
Asset forfeiture is a process by which government officials seize—and often keep or sell for their own department’s profit—private property they allege was involved in a crime. The standard for such seizures is typically very low, such as mere “probable cause”, which is the standard that must be met merely to obtain a search warrant. Often the property owners need not have been convicted of, or even charged with, a crime, and the burden of proof that the property was NOT involved in a crime lies on them. Because of the extreme expense of going to court to get back such property stolen under color of law, many owners cannot afford to take action or would actually lose more money by doing so. Many either accept a fraction of their property back from the government in exchange for not pursuing legal action or simply lose it completely without due process.
Such an end run around our Constitutionally-guaranteed jury rights undermines the role of the jury in protecting individuals from being punished without due process of law. When we are accused of a crime, the founders intended that we must first be determined guilty through trial by jury before being punished, thereby placing our own neighbors as a protective barrier between us and government. It was intended that government must surmount that high hurdle before depriving us of life, liberty, or property. That, however, has been chipped away at throughout American history, by such tactics as limiting the right to trial by jury, coercing people into alternative court processes or plea bargains, and so on.
Civil asset forfeiture is another such tactic that erodes the protection of the jury. Instead of guilt or innocence being determined by a relatively objective jury representing the community, it is decided by government officials with no accountability and who often have a conflict of interest when their departments’ budgets depend on such “policing for profit”.
Moreover, losing access to one’s own assets makes it all the more difficult to defend oneself in court if criminal charges are involved. “By seizing the assets of a defendant before trial, a prosecutor can make it very difficult for a defendant to hire qualified counsel and make it to a jury trial,” points out Eapen Thampy, executive director of Americans for Forfeiture Reform.
“Defendants without access to qualified counsel must choose between an overworked and under-resourced public defender, defend themselves pro se, or accept a plea bargain from the prosecutor. In every scenario this allows the government to limit the ability of defendants to assert their rights, and prevent government misconduct from being examined during a public trial,” Thampy says.
Insult is added to injury when defendants are not only unable to access their own assets in their own defense, but have such funds used against them when they are channeled into their arrest and prosecution. According to the Institute for Justice when they issued the D+ grades, 100% of New Mexico’s and Montana’s asset forfeiture funds went back to law enforcement, including funding a substantial percentage of prosecutors’ salaries in Montana.
While the measures passed do not close the door entirely on policing for profit, they do make progress in restoring the role of the jury in protecting those accused from punishment without due process, including the ability of juries to protect private property by exercising jury nullification when a just verdict requires it.
Further reading on asset forfeiture and jury rights:
-Acquittal Now Protects Against Asset Forfeiture in Minnesota
-Asset Forfeiture Circumvents Trial by Jury and Jury Nullification
-U.S. Attorney Seeks Forfeiture of Assets from Defendants Acquitted by Jury
This is shared for educational and informational purposes only; FIJA National is a strictly educational organization that does not endorse or oppose any legislation, citizens’ initiative, political candidate, or party.