James Madison declared way back in 1792 that in America, "Government is instituted to protect property of every sort (and) to secure to every man whatever is his own."
That was then.
Today, according to a new Institute for Justice report, "Policing for Profit: The Abuse of Civil Asset Forfeiture," "Civil forfeiture threatens the constitutional rights of all Americans. Using civil forfeiture, the government can take your home, business, cash, car and other property on the mere suspicion that it is somehow connected to criminal activity — and without ever convicting, or even charging, you with a crime."
The report goes on to say, "In 2015,Vermont took one step forward and two steps back with its civil forfeiture laws, raising the government's standard of proof to forfeit property while also creating a new incentive for law enforcement agencies to police for profit."
Here is how laws in Vermont work for property owners.
Standards of proof: In most states, to forfeit property suspected of involvement in a crime, law enforcement officials need only show that the property was used in a crime based on "a preponderance of evidence," meaning the government's case need only be slightly better that the property owner's. This low level of proof favors the government, not the property owner.
In Vermont, however, laws now require the government to provide clear and convincing evidence tying property to an owner's conviction in criminal court before the property can be forfeited.
Innocent owner burden: What if someone other than yourself, a friend perhaps, allegedly uses your property to commit a crime and the police have seized your property. Because property owners are presumed to be somehow connected to a crime involving their property, in Vermont it is your legal responsibility — not the government's — to prove that you had nothing to do with the crime and that your property should be returned to you.
Police profit incentives: Converting private assets to public use is an on-going business in Vermont. Teaming up with property forfeiture programs run by the federal Departments of Justice and Treasury — in effect loopholes that allow state law enforcement agencies to sidestep strict state laws — Vermont law enforcement agencies raked in more than $17 million from the sale of forfeited property between 2000 and 2013.
Under Vermont's new statutes, law enforcement agencies are allowed to keep, for their own use, up to 45 percent of the proceeds from the sale of forfeited property. Under the old law, all forfeited proceeds went to the state's treasure, not the law enforcement agencies. Due to lack of data, it is not known how much law enforcement agencies collected under these laws since 2009.
Still, these are powerful incentive for agencies to aggressively seize private property in anticipation of padding their bottom line.
Looking to the future, the IJ report lists a number of steps needed to end property abuse in Vermont and in other states.
Close federal loopholes: In many states police agencies rely on these federal loopholes to both side step stiffer state forfeiture laws — such as the requirement that forfeiture proceeds must go to the state's education budget — and to increase their cut of the seized properties. One national survey found that 40 percent of state and local police agencies consider civil forfeiture proceeds a necessary part of their budgets.
Good news: Due to federal budget cuts, these federal loopholes have been, perhaps only temporarily, closed. To protect Vermont property owners, the IJ recommends permanently shutting down this law enforcement gravy train.
Not so good news: In response to the shutdown of the federal programs, the International Association of Chiefs of Police issued a statement saying the decision was "detrimental to state, local and tribal law enforcement agencies and the communities they serve."
Boost standards of proof: Raising the level of proof needed in other states before private property can be forfeited is also needed.
End conflicts of interest: As long as a law enforcement department's prestige, and the reputation of its officers, is judged by how many assets are seized each year, police chiefs will have a strong incentive to push their officers to be more aggressive during raids, make unnecessary raids and cut legal corners.
Until law enforcement agencies stop financially gaining from their seizures, Vermont citizens will continue to wonder why their police forces conduct drug raids. Are they to rid the town of drugs or to fatten police department budgets?
Ronald Fraser, Ph.D., writes on public policy issues for the DKT Liberty Project, a Washington-based civil liberties organization. He can be contacted at firstname.lastname@example.org.