Lee McGrath: Put it this way: The cops own their mistakes

  • Article by: LEE MCGRATH
  • March 21, 2010 - 4:16 PM

In America, a person is presumed innocent until proven guilty. But Minnesota's asset-forfeiture laws turn that principle on its head. Our laws say that your property is guilty until you prove it innocent.

The problems with asset forfeiture extend beyond a few rogue cops in the Metro Gang Strike Force, whose issues have been well-publicized. We have bad laws in Minnesota.

State forfeiture laws give incentives to law enforcement to seize property based on mere suspicions. A person need not be accused, arrested or convicted of a crime for his or her property to be forfeited to law enforcement agencies across Minnesota.

The Legislature should reform Minnesota's forfeiture law in three ways: First, require that those suspected of a crime are convicted before their property is forfeited. Second, remove the profit incentive that entices police and prosecutors to police for profit rather than seeking the neutral administration of justice. Third, strengthen the protection of innocent owners by giving them meaningful opportunity to get their property returned.

Unfortunately, lawmakers are bowing to lobbying pressures from law enforcement agencies and prosecutors. Instead of meaningful changes, police, prosecutors and some legislators are supporting faux reforms authored by Rep. Joe Mullery, DFL-Minneapolis, that increase notices but not the rights of the innocent. More worthy of support are reforms authored by Rep. Tina Liebling, DFL-Rochester, and Sen. Ron Latz, DFL-St. Louis Park.

Real forfeiture reform will allow legislators to be tough on crime while still respecting property rights. Convicted criminals will lose ill-gotten gains, while innocent people will not lose their property at the whim of police and prosecutors whose budgets benefit from the taking.

American forfeiture law arose from the British Navigation Acts of the 17th century. The acts required any ship transporting goods to British ports to sail under the British flag. If the acts were violated, the ships or its cargo could be seized and forfeited to the crown. The British laws focused on seizing the assets because in that way violations of the law could result in punishment even when the violators could not be captured.

Modern civil forfeiture exploded during the early 1980s as governments expanded the war on drugs. No longer tied to the practical necessities of maritime law, forfeiture today is one of the most powerful weapons in the government's crime-fighting arsenal -- available even when it has apprehended suspects.

That's the key point. Today, law enforcement apprehends suspects and takes forfeited property. Unlike its British predecessors, it no longer uses forfeiture as a substitute for apprehension but in addition to apprehension.

There are also significant obstacles that today prevent even innocent people from trying to get their property back after it has been seized. Specifically, the legal costs are prohibitive. The forfeiture process is so daunting that property owners face the burden of paying thousands of dollars to lawyers to work through complicated forms and, in many situations, to initiate lawsuits.

This is particularly relevant when the value of the property seized is modest, as is the case in Minnesota, where more than 70 percent of forfeited assets are worth less than $1,000. With the value of seized assets being so low and the cost of litigation so high, it is an unfortunate reality that innocent property owners do not bother retrieving their assets. They just walk away without a fight.

Asset forfeiture is a serious assault on private-property rights in Minnesota. It allows police and prosecutors to take title to property without the property owner being found guilty of a crime and to have their agencies benefit from the proceeds. Just as this Legislature rightfully stopped eminent-domain abuse in 2006, it should end the abuses to property that occur daily under the state's bad asset-forfeiture laws.

Lee McGrath is the executive director of the Minnesota Chapter of the Institute for Justice, a libertarian public-interest law firm.

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