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Civil asset forfeiture under legislative, judicial scrutiny.

Byline: Barry Bridges

One week after the U.S. Supreme Court's holding in Timbs v. Indiana limited the ability of state and local governments to boost their bottom lines through property seizures, a local lawmaker introduced legislation that he said would usher in needed civil forfeiture reforms in Rhode Island.

House Bill 5721, the "Asset Forfeiture Process and Property Right Preservation Act," was introduced by Rep. Brian C. Newberry on Feb. 27 and has gleaned bipartisan support in that chamber, with several attorney lawmakers Majority Leader K. Joseph Shekarchi, Judiciary Chair Robert E. Craven Sr., Rep. Joseph J. Solomon Jr. and Minority Leader Blake A. Filippi signing on as co-sponsors.

Newberry has lobbed criticisms at the current system, faulting Rhode Island's forfeiture laws for allowing seizures based only on criminal suspicion. He is also concerned that the state sets too high a bar for innocent property owners to reclaim what is rightfully theirs.

"The laws are poorly written as they exist now," Newberry said. "When I see a national organization giving us a 'D-minus,' it gives me pause."

Newberry was referencing a report by the Institute for Justice, a national libertarian public interest law firm headquartered in Virginia, which has given Rhode Island's "awful" asset forfeiture laws a grade of "D-minus" in terms of due process and transparency.

According to the institute, while "law enforcement need only show probable cause to seize property," Rhode Island property owners must "prove by a preponderance of the evidence that their property is not forfeitable" for it to be returned. The nonprofit further claims that the state's law enforcement agencies retain 90 percent of all forfeiture proceeds, which is "a generous incentive to wield their forfeiture powers."

"It's good to have idiosyncrasies among the states to some degree," Newberry said. "But with asset forfeiture there is a need to do things in a uniform way. It's an easily abused process, and there needs to be more predictability in how the laws are enforced, consistent with constitutional principles."

End of civil forfeiture?

With one of the bill's purposes being to "ensure that only criminal forfeiture is allowed in this state," it requires proof of a criminal conviction and a showing by clear and convincing evidence that the property is forfeitable.

Giovanni D. Cicione, who assisted in drafting the bill, confirmed that the legislation would abolish civil forfeiture in Rhode Island.

"The idea is that forfeiture should not be a civil issue," he said. "Since the 1970s, there has been an incremental crawl into the civil realm, because it had been so effective in the criminal context. But it has not been a conscious decision of legislatures for that to happen."

Cicione said there is agreement across the political spectrum that reform is needed.

"It's a full bipartisan effort," the Providence attorney said.

The bill also speaks to "equitable sharing," whereby prosecutors take a detour around more stringent state laws by transferring cases to the U.S. government for forfeiture under federal law in return for a share of the proceeds. HB 5721 limits that practice to situations in which the seized property "includes U.S. currency in excess of $100,000."

"There are not a lot of cases in Rhode Island that rise to the level of equitable sharing, and we are not trying to make an end run around the federal rules, but when you have reforms on the state level, it's very easy to want to kick it up to the federal level," Cicione said. "We are trying to prevent any abuses of jurisdiction shopping. And our focus on transparency, in requiring law enforcement to report what they are doing, may prevent that."

Cicione also said that the intent is not to have a detrimental impact on local budgets.

"Our goal is to strengthen civil rights protections, and to the extent we need to work with police departments to fine-tune the details, we are happy to do that," he said.

Newberry said the bill has been written to accommodate objections previously raised by law enforcement officials, the attorney general and the state treasurer.

Changes in the 2019 version include eliminating a $10,000 vehicular minimum seizure threshold in response to law enforcement's concerns that less valuable vehicles could be used in the commission of crimes; aligning the asset forfeiture system with the state's management of abandoned and lost property; and providing tools for municipalities to comply with enhanced reporting and transparency requirements.

"An asset forfeiture reform bill has been introduced for a few years now, so the issue has been around but is evolving," Newberry said. "The opposition in the past has been primarily from the Attorney General's Office, but this year the drafters have been working with them to address their concerns."

The fact that there are sponsors from both parties is no accident, he added.

"It's a bi-partisan bill supported by the leadership on both sides, and no one in the Legislature seems to be opposed; it's not some fringe thing," Newberry said.

Cicione agreed.

"We have very strong legislative support and are hopeful we can get it over the line this year," he said.

But Newberry conceded that any continuing opposition from the AG's Office could create uncertainty as to the bill's fate. A spokesperson there indicated that the legislation is being reviewed.

Excessive fines incorporation

The U.S. Supreme Court's holding last month in Timbs v. Indiana that the Eighth Amendment's prohibition on excessive fines is applicable to the states through the 14th Amendment's Due Process Clause has given state and local officials even more reason to review their civil forfeiture practices.

In that case, after Tyson Timbs was arrested for selling heroin to undercover police officers, his Land Rover, which he had purchased for $42,000, was seized.

The state brought a civil suit for forfeiture of the SUV, charging that the vehicle had been used to transport heroin. After Timbs pleaded guilty to dealing in a controlled substance and conspiracy to commit theft, the trial court held a hearing on the forfeiture demand.

Although the judge found the Land Rover had been used to facilitate a crime, the requested forfeiture was denied as grossly disproportionate to the gravity of the offense, considering the maximum $10,000 fine assessable against the defendant for the drug conviction.

The Court of Appeals of Indiana affirmed, but the state Supreme Court reversed, holding that the Eighth Amendment's Excessive Fines Clause applies only to federal actions, not those of the state.

The U.S. Supreme Court balked at that outcome and vacated the judgment, announcing that the prohibition on excessive fines is an incorporated protection applicable to the states.

"With only a 'handful' of exceptions, this Court has held that the Fourteenth Amendment's Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States," Justice Ruth Bader Ginsburg wrote for the court. "A Bill of Rights protection is incorporated, we have explained, if it is 'fundamental to our scheme of ordered liberty,' or 'deeply rooted in this Nation's history and tradition.'"

To show that the clause met that standard, Ginsburg meticulously traced its lineage in English law back to at least 1215 with Magna Carta requiring that "economic sanctions 'be proportioned to the wrong.'" From there, similar provisions made their way into the English Bill of Rights, the Virginia Declaration of Rights, and eventually into the Eighth Amendment.

"Today, acknowledgment of the right's fundamental nature remains widespread," she wrote, with all 50 states now having constitutional provisions either directly prohibiting excessive fines or requiring proportionality.

"For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history," Ginsburg said, adding that fines have not only been used to further the "penal goals of retribution and deterrence," but have also been used as a source of revenue for state and local governments when other forms of punishment "cost a State money."

"This concern is scarcely hypothetical," she observed.

Cicione spoke to the decision's significance.

"It indicates that the current justices are paying attention to these issues after hearing the drumbeat of criminal justice reform in the last five to 10 years," he said. "But on a more practical note, we now have a very clear ruling that says out-of-scale seizures are void."

Like any legislative effort, Cicione added, "the theory is good, but when you put a face and undisputed facts to it and then put it in a courtroom, the legislators 'get it.'"

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Title Annotation:Rhode Island
Author:Bridges, Barry
Publication:Rhode Island Lawyers Weekly
Date:Mar 14, 2019
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