Law Enforcement Will Have a Harder Time Seizing Property In This State

Two major changes to New Jersey’s system of civil asset forfeiture went into effect this week, a move that will make it more difficult for law enforcement to take someone’s property when they are merely suspected of a crime.

The new laws will raise the evidence standards police and prosecutors need to meet before they can seize property. Under the previous law, an individual did not have to be found guilty—or even charged—in order for their property or cash to be seized. The new system will in most cases require a defendant be convicted in order for law enforcement to take property or cash and shifts the burden of proof to the state to prove “by clear and convincing evidence” that the owner of the property was involved in unlawful activity. 

The package also includes a measure to create a reporting process through which police departments will have to detail their forfeiture activities on a regular basis.

As he signed the two bills into law, Gov. Phil Murphy said the changes will “boost confidence in [the] justice system” and will be a “huge step forward” for accountability and transparency.

Civil asset forfeiture has come under fire in New Jersey in recent years, especially after an ACLU of New Jersey report found that in the first five months of 2016 there were approximately 1,860 civil forfeiture cases involving more than $5.5 million, 234 cars, and one home. Police also seized items like baseball cards, bicycles, shoes, iPods, and laptops. The ACLU found that seizures were disproportionately conducted in low-income areas and communities of color. 

The process of civil asset forfeiture was relatively simple before recent reforms. Law enforcement could conduct a search of a person, their car, or their home, and if they suspected that any property that person owns (including cash) was “integral” to a crime, they could seize it. Law enforcement could then keep whatever they seized unless challenged in court.

The ACLU report found that in the 1,860 cases examined, only 50 defendants appeared in court to contest the forfeiture. Because these cases are civil matters, defendants don’t have the right to free counsel and court filing fees up to $175 make the practice cost-prohibitive. 

Jennifer McDonald, a senior research analyst at the Institute for Justice, a libertarian public interest law firm that researches civil asset forfeiture laws, said that New Jersey’s past practices weren’t unusual compared to other states, but across the country many state leaders—both Democrats and Republicans—have been putting limits on what law enforcement can seize. “Civil asset forfeiture is a practice that’s becoming more and more well known as groups across the ideological spectrum get involved,” she said. “Folks on the right are concerned about property rights and folks on the left are concerned about how the system is regressive and affects communities of color.”

In the past few years, dozens of states passed laws that increase the burden of evidence on the prosecutors, establish transparency requirements and funnel forfeited assets into neutral general funds rather than police department budgets. In 2017, all 50 state legislatures saw bills introduced related to civil asset forfeiture reforms. New Mexico, North Carolina, and Nebraska have abolished civil forfeiture entirely.

McDonald said that New Jersey’s laws are a good start, but don’t go as far as some other states’ reforms. For one, the law raises the standard of evidence that prosecutors must use to say the property is connected to a crime from a “preponderance of evidence,” which McDonald explained as “51% certainty that the property was involved in a crime,” to a “clear and convincing” evidence standard. “That’s a higher standard than before, but it’s not ‘beyond a reasonable doubt,’” she said.

The new law also exempted some property and cash from the new requirements, including cases where there is no known owner of the seized asset or it is worth more than $1,000 in cash or $10,000 in property. Most seizures in New Jersey are worth a few hundred dollars or less.

The reforms also don’t tackle what some critics call the “profit incentive” for police. In New Jersey and many other states, law enforcement can keep seized funds and use them for things like salaries and new equipment. “Research shows that the profit incentive is the strongest motivator for civil asset forfeitures,” McDonald said. “Sometimes that causes a strong police lobby to slow down an otherwise popular reform.”

Police groups have also been opposed to efforts to revamp civil asset forfeiture in the past because they say the laws are necessary to disrupt organized drug trafficking rings. 

John Armeno, the president of the Sheriffs’ Association of New Jersey, said his organization had not taken a position on the legislation. The New Jersey State Municipal Prosecutors Association could not be reached for comment. 

Even when states do eliminate the profit incentive, law enforcement can still get money from forfeitures through the Equitable Sharing Program, which allows state and local law enforcement to partner with federal authorities. When law enforcement makes a seizure and hands the property to the federal government, they can receive back up to 80% of the value of the property.

That process has limited the transformative scope of reform in places like Missouri, where in 1993 lawmakers introduced a conviction requirement and removed the money from police coffers. Since then, however, law enforcement has shifted much of their forfeiture revenue over to the Equitable Sharing Program. “They’re using federal law to circumvent local law,” McDonald said. “It really stifles reform.”

Other states, like New Mexico, have closed that loophole by prohibiting state and local law enforcement from participating in the federal program. McDonald said she hopes to see a similar measure come to New Jersey next. “The state has shown with these two laws that there is a clear appetite for reform,” she said.