Civil forfeiture laws are on the books in 37 states. Only Nebraska, New Mexico, and North Carolina no longer allow the practice. South Carolina could join them if the state Supreme Court finds that civil forfeiture is a violation of both the U.S. and South Carolina constitutions. Here’s the question: will ending civil forfeiture in South Carolina be good or bad?
The practice of civil forfeiture is often referred to as drug forfeiture due to how frequently it is implemented in relation to drug investigations. But the laws in most states allow for civil forfeiture for other crimes as well. Constitutionalists and civil liberties advocates have long held that civil forfeiture is a violation of some of America’s most basic civil rights.
Civil Forfeiture in Simple Terms
Civil forfeiture is a legal doctrine that allows police departments and prosecutors to seize the assets of those suspected of certain crimes. However, Utah criminal defense attorney Anita Dickinson says that it doesn’t end there. Prosecutors and police departments can go much further.
Dickinson says that forfeiture laws allow for the sale of confiscated assets with the money going to local law enforcement. If a local police department sells a group of vehicles it seized, it gets to keep the proceeds from the sale. If the DA’s office sells a couple of homes, they pad their budget with the sales revenue.
Unfortunately, it gets even worse. Civil forfeiture laws in most states do not even require that charges be filed. Someone merely suspected of being involved in a crime could be subject to asset seizure and sale. And yes, there have been plenty of instances of citizens falling victim to forfeiture and never being charged with a crime.
Civil forfeiture isn’t just a problem at the state level, either. The feds have dirty hands as well. For example, the Department of Homeland Security seized more than $2 billion in cash from airport travelers from 2000 through 2016. In two-thirds of the cases, the victims were never arrested or charged. Seized cash was returned in only a small number of cases.
Citizens Go on the Offensive
Getting back to the South Carolina Supreme Court case, it is the result of a lower court siding with a man who pled guilty to two drug charges. He was sentenced to 15 years in prison for his crimes. Meanwhile, more than $20,000 seized by law enforcement was not returned.
The man sued on the grounds that a $20,000 fine on top of 15 years in prison was excessive, and therefore a violation of both the South Carolina and federal constitutions. The circuit court agreed. In his decision, the judge also stated that South Carolina law creates an incentive to practice civil forfeiture without due process by allowing law enforcement to retain 95% of what it seized.
Slowly but surely, citizens and criminal defense attorneys are going on the offensive. They are starting to come to terms with the fact that the U.S. Constitution strictly prohibits excessive fines and criminal penalties. And even when fines and penalties are appropriate, law enforcement and prosecutors cannot sidestep due process.
Civil forfeiture proponents claim that it is an important law enforcement tool that local police and prosecutors cannot afford to give up. Critics claim that civil forfeiture is a constitutional violation on many fronts. South Carolina is set to get a decision from its Supreme Court in short order. If civil forfeiture falls in the Palmetto State, will it set off a chain reaction? And if so, will it be good or bad?