Today, New Mexico Gov. Susana Martinez signed a bill into law that not only restricts the state from seizing property without due process, but throws a wrench into federal efforts to do the same.
Introduced by State Rep. Zachary Cook (R-56), House Bill 560 (HB560) prohibits the state from engaging in a practice that observers such as the Institute for Justice (IJ) have called ‘legal plunder.’ Under this law, the state of New Mexico is prohibited from confiscating property from suspects of a crime until after they are convicted.
The new law only allows seizures under the following circumstances:
(1) the person was arrested for an offense to which forfeiture applies;
(2) the person is convicted by a criminal court of the offense; and
(3) the state establishes by clear and convincing evidence that the property is subject to forfeiture
Individuals whose property is seized may “at any time before sixty days prior to a related criminal trial, claim an interest in seized property” and “shall have a right to a hearing on the motion before the resolution of any related criminal matter or forfeiture proceeding and within thirty days of the date on which the motion is filed.” At least ten days before the hearing, the state must “file an answer or responsive motion that shows probable cause for the seizure.”
FEDERAL FORFEITURE
In 2012, federal, state and local law enforcement gobbled up more than $4.2 billion in assets. Federal laws, along with most state laws, allow law enforcement agencies to pocket a large portion of that money. As the Washington Post put it, “asset seizure fuels police spending.”
Police agencies have used hundreds of millions of dollars taken from Americans under federal civil forfeiture law in recent years to buy guns, armored cars and electronic surveillance gear. They have also spent money on luxury vehicles, travel and a clown named Sparkles.
Federal forfeiture law makes the problem worse with so-called “equitable sharing.” Under these arrangements, state officials can hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds—even when state law bans or limits the profit incentive. Equitable sharing payments to states have nearly doubled from 2000 to 2008, from a little more than $200 million to $400 million.
The new law addresses this process with an express prohibition on using federal forfeiture law as an end-run around the new state restrictions. It reads, in part:
The law enforcement agency shall not transfer property to the federal government if the transfer would circumvent the protections of the Forfeiture Act that would otherwise be available to a putative interest holder in the property.
SUPPORT
Gov. Martinez’s statement can be read here.
House Bill 560 (HB 560) makes numerous changes to the asset forfeiture process used by law enforcement agencies in New Mexico. As an attorney and career prosecutor, I understand how important it is that we ensure safeguards are in place to protect our constitutional rights. On balance, the changes made by this legislation improve the transparency and accountability of the forfeiture process and provide further protections to innocent property owners.
Asset forfeiture is supposedly intended to stop criminal operations, but it has instead created an operation ran by police and judicial authorities where people are stripped of their property without being found guilty of a crime. This practice is a direct violation of the 4th Amendment of the Constitution and has fueled the militarization of the police and the unconstitutional federal drug war.
Institute for Justice Legislative Counsel Lee McGrath cheered the signing of HB560:
New Mexico has shown that ending policing for profit is a true bipartisan issue with broad public support. America is ready to end civil asset forfeiture, a practice which is not in line with our values or constitution. This law shows that we can be tough on crime without stripping property away from innocent Americans.
If similar measures catch on across the country, it will restore an important privacy rights protection that has been missing throughout America for many years.
