A bill that would roll back the controversial state practice of civil asset forfeiture is headed for a public hearing before the Banking Committee on Thursday.
The proposed bill would require a criminal conviction in order for the state to forfeit property related to the commission of a crime.
Current civil asset forfeiture laws in Connecticut do not require that a person actually be convicted of a crime in order for the government to forfeit their property. Instead, the state only requires “clear and convincing” evidence that the suspect knowingly used the property in the commission of a crime in order to take it.
This legislation would raise the burden of proof for the state by requiring a criminal conviction and proof that the property had been used in the crime or is “directly traceable to the proceeds derived” through the crime.
This would make state civil asset forfeiture law similar to criminal asset forfeiture, which requires the owner of the property to be convicted in criminal court.
If passed it would also redirect funds from sale of the property into the Connecticut General Fund, rather than directing it back into the local police departments and other state agencies.
Under current law, property taken by civil asset forfeiture, such as cash, houses or cars, are sold off and the money is divided between the local police department, the Department of Emergency Services and Public Protection, the Department of Mental Health and Addiction Services and the Connecticut Division of Criminal Justice.
Law requires these agencies to use the funds for “substance abuse treatment and education programs and detecting, investigating, apprehending, and prosecuting people for drug crimes,” according to a report by the Office of Legislative Research.
While most groups support criminal asset forfeiture, the practice of civil asset forfeiture has generated much controversy over the years. Groups like the Institute for Justice and the American Civil Liberties Union claim the practice is a violation of private property rights and due process.
The Institute for Justice gave Connecticut a C rating for its forfeiture laws as part of its “Policing for Profit” research initiative and ranked the state 22nd in the nation.
Lee McGrath, managing attorney for the Institute for Justice in Minnesota, says the proposed bill “is a good first step toward starting a discussion,” but would prefer to “repeal and replace” the law.
“I’m hopeful that the legislature will end civil forfeiture and replace it with criminal forfeiture,” he said. “Connecticut already uses criminal forfeiture.”
According to the report, 77 percent of all forfeitures in Connecticut were civil asset forfeitures and the remaining 23 percent were criminal forfeitures.
McGrath says the burden of proof in civil cases is much lower, thereby making it easier for prosecutors to forfeit property. Public defenders are not allowed to represent their client’s property in a civil case and many suspects cannot afford an attorney in order to get their property back.
One of the contentious aspects of civil asset forfeiture is that the forfeiture is an in rem action. According to the Department of Justice, “the property is the defendant and no criminal charge against the owner is necessary.”
Essentially, the suspect is entered into the criminal system process while his property is entered into the civil system process. The two systems are independent, so someone can be acquitted of a crime and still lose their property.
The Connecticut division of the ACLU supports the bill that will go before the Banking Committee.
David McGuire, executive director of the Connecticut ACLU, said in a statement, “Taking innocent people’s property is unacceptable and unconstitutional, and it has no place in modern law enforcement.”
McGuire pointed to several states that have made significant reforms to their civil asset forfeiture, such as North Carolina, New Mexico and Nebraska. However, McGuire said the ACLU is in favor of keeping criminal asset forfeiture. “By requiring a conviction prior to asset seizure, criminal forfeiture holds police to a higher standard, preserves due process, and provides better protections for innocent people’s rights.”
A number of states have made significant changes to their civil forfeiture laws. In 2016 New Hampshire passed forfeiture reforms very similar to the bill being considered in Connecticut. The bill doesn’t eliminate civil asset forfeiture but raises the burden of proof by requiring a conviction.
Lauren Krisai of the Reason Foundation is currently examining Connecticut civil asset forfeiture cases throughout the state. She says the burden of proof should be on the state, rather than the individual.
Krisai says the sharing of funds between law enforcement agencies acts as an incentive for prosecution and law enforcement to keep the program in place. “But I think if we value private property rights of individuals in Connecticut, of Connecticut citizens, we should move toward a model that requires a conviction before your assets can be taken.”
Connecticut also takes part in the Department of Justice’s federal equitable sharing program in which state and local officers assisting in a federal investigation will have a share of any assets seized by federal agents.
This practice enables police to prosecute some asset forfeiture cases under federal law rather than state law. Although this practice was temporarily halted in 2015 it restarted in 2016, drawing criticism from The Washington Post.
Connecticut took in $24 million from the federal Department of Justice between 2002 and 2014, according the Institute for Justice and nearly $2 million in cash and property in 2015.
The hearing before the Banking Committee will take place Thursday March 2nd in the Legislative Office Building.
Suzanne Bates, policy director for the Yankee Institute for Public Policy, welcomed the news that Connecticut is considering reforms. "It's exciting that we have such a broad and diverse group working on this issue," she said. "We all agree it's important to let police officers do their job, but also that we need to make sure that people's property rights are respected. The good news is, we can do both."