Still too weak

Strengthen property rights

The state of Arkansas took a step forward this legislative session in reforming a major threat to Arkansans’ property rights: civil asset forfeiture.

Civil asset forfeiture allows law enforcement to take any person’s property, such as cash, vehicles, guns, or homes, based on suspicion the property was involved with a crime. If you are stopped by a police officer while driving to a car dealership to purchase a new car, that officer can take your $1,000 down payment if they get suspicious. The property (not you) is then charged with a crime in civil (not criminal) courts, leading to amusing case names such as State of Arkansas v. GMC Pickup Truck or State Of Arkansas v. $710 in U.S. Currency.

What isn’t amusing is that many constitutional protections don’t apply in these cases. You don’t have the right to an attorney, because these are civil—not criminal—cases. This isn’t true in every state, however. Several states have completely abolished civil asset forfeiture and replaced it with criminal forfeiture. In these states, police can still seize and forfeit property, but all the constitutional protections individuals have in criminal court would apply to asset forfeiture as well.

While the Arkansas legislature did improve the law, due to included exceptions, the impact of this change will be very small.

The Civil Asset Forfeiture Reform Act of 2019 (Act 476), sponsored by Sen. Bart Hester, R-Cave Springs, changes Arkansas law so that property cannot be forfeited unless the person who owns the property seized is convicted of a felony, with a few exceptions, such as: the person agreed to a plea deal to forfeit the property, fled or failed to appear, or disclaimed interest in ownership of the property. The largest of these exceptions is that property owners must still appeal the seizure.

What does this mean? First, the return of the property to innocent people is not automatic. Property owners must still go through the process of appealing the seizure in the civil court system, not the criminal system, where the individual will be tried. This means that property owners must hire a lawyer to submit this appeal. How much money would you spend on a lawyer to attempt to regain your property? It probably depends on how much you lost.

Most seizures involve smaller amounts of money. Eighty-seven percent of seizures are for property worth less than $5,000, and 47 percent are less than $1,000. It doesn’t make sense to spend several thousand dollars on an attorney when the amount you would possibly get back would be less than that. This leaves many innocent Arkansans to give up on hard-earned property or cash that is rightfully theirs.

The state seized nearly $59 million from citizens between 2010 and 2018. This data from the Arkansas Drug Director and the Asset Seizure Tracking System was compiled by researchers at the Arkansas Center for Research in Economics (ACRE): Maleka Momand, a research fellow and UCA Schedler Honors College alumna, and myself.

Nearly 5,000 vehicles were seized between 2010 and 2018. We know some were kept by the state rather than returned to their rightful property owners. Unfortunately, Arkansas’ poor reporting standards don’t allow us to know how much was kept by the state rather than returned.

There is no publicly available data when it comes to civil asset forfeiture cases and their results. ACRE researchers have made Freedom of Information Act requests to get some information related to seizures, such as how much was seized and how many vehicles, firearms, and other properties were seized. However, with the data currently available, there is no way to easily discover whether law enforcement kept this property or had to return it. Furthermore, local law enforcement agencies only have to report their expenditures from forfeiture proceeds to the local budgetary authority, making the gathering of this data extremely difficult.

Arkansas could be much more transparent when it comes to civil asset forfeiture by making this data publicly available.

The recent U.S. Supreme Court ruling in Timbs v. Indiana also reformed civil asset forfeiture by applying constitutional protections against excessive fines by the states (including state civil asset forfeiture). Before, protection from excessive fines only applied to federal crimes. Unfortunately, the Supreme Court decided to leave the definition of “excessive” to lower courts so the true impact of the case could be anywhere from small to large.

The best thing Arkansas could do would be to replace civil asset forfeiture with criminal forfeiture, where all the rights and protections individuals have when facing criminal prosecution could be exercised, including the right to an attorney. Three states have already done this—North Carolina, New Mexico, and Nebraska.

Arkansas could join these and demonstrate its commitment to respecting the property rights of all people within our borders.