Vermont Considers Major Forfeiture Reform

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Tomorrow, I will testify before the Vermont General Assembly on H. 533, a measure that would reform the Green Mountain State’s system of asset forfeiture. The bill would bar the federal government from resorting to some kinds of “adoptions” of forfeiture actions. Such adoptions, as explained below, circumvent Vermont’s authority over asset forfeiture. The bill would also transform Vermont’s civil forfeiture system into a fairer and more efficient system of criminal forfeiture.

Below is a selection from my forthcoming testimony to the House Judiciary Committee:

There is a fundamental tension between the government’s use of civil forfeiture and the property and due process rights of its citizens. Civil forfeiture allows police officers to seize property, and that seizure only requires probable cause to believe that the property is related to crime; prosecutors then can shift ownership of the property to the government through litigation in civil court, even if the property owner never faced criminal conviction or even criminal charges. The danger that civil forfeiture poses to property rights and due process raises significant questions about fundamental fairness.

The median size of a cash seizure in America today is around a few hundred dollars to a little over a thousand dollars. (Medians vary by state.) It appears that Vermont’s forfeiture proceeds come solely from federal equitable sharing that averages about $800,000 yearly. I do not have data on Vermont forfeiture revenues under state law in which the federal government is uninvolved, but testimony by Evan Meenan, for the Department of State’s Attorneys and Sheriffs, suggests that nearly all forfeiture is done under federal law. This is a problem because the state legislators of Vermont, not the federal government, are ultimately responsible for codifying crimes and establishing just punishment that reflects Vermont’s values. To put it a different way, I would say to Vermont policy makers that the federal government, in coordination with state law enforcement agencies, is circumventing you.

H. 533 addresses the structural problem that springs from the dual sovereignty of state and federal government: namely, even if state governments address the problems described above by reforming law enforcement procedures within their borders, federal government operations regularly allow for “adoption” of cases involving forfeiture (namely, handing off enforcement and prosecution of forfeiture from state government to the federal government). The agreement typically delegates responsibility to the federal government for enforcement and prosecution while providing that state government will ultimately receive an 80 percent share of the forfeited property. Such federal-state agreements are especially hard on those who lack the means to fund litigation against the enormous resources and talents of the U.S. Department of Justice. More generally, there is a substantial danger that such adoptions will be used to circumvent state law that is intended to safeguard the rights of its citizens—such as the bill’s conviction prerequisite.

Multiple states have chosen to pass anti-circumvention statutes that address this problem, and the passage of H. 533 would narrow this problem’s scope in Vermont. In a nutshell, these statutes prevent the circumvention of state law protections by adoption. Eight states (Arizona, California, Colorado, Maine, Maryland, Nebraska, New Mexico, and Ohio) and the District of Columbia have passed anti-circumvention measures. H. 533 prevents circumvention unless the seized property includes cash over $100,000 or it is the product of state-federal cooperation (i.e., “task forces”). This $100,000 boundary requires state government agencies to respect the policy goals of the state legislature when prosecuting relatively small seizures; similarly, other boundaries in the bill completely protect the interests of ordinary citizens who, for one reason or another, sometimes need to carry relatively small amounts of cash. In my view, H. 533 could be improved by extending the $100,000 threshold to apply to both adoptions and joint task forces; nonetheless, the current bill draft would establish significant advances in Vermont’s justice system.

To read more of my testimony, see here.