Ohio Gov. John Kasich (R) on Wednesday signed a bill reining in law enforcement’s power to permanently seize property from people who have not been convicted of a crime, and in many cases have not even been charged with one.
The bill, HB 347, addresses the controversial practice known as civil asset forfeiture. Police say they use the tool to target the financial proceeds of criminal enterprises, as it allows officers to confiscate cash and property from individuals whom they suspect of being involved in illegal activity, even when officers may not have clear evidence of the supposed crime. But critics say the broad application of civil forfeiture has made it ripe for abuse, and has given rise to a system of policing for profit that lets departments pad their budgets with assets seized from innocent civilians.
The new law, set to go into effect by early this year, will take care of a number of key concerns about civil forfeiture in Ohio.
HB 347 creates a two-tier system for forfeiture. Cash or property valued at under $15,000 will require a criminal conviction prior to forfeiture. Anything above $15,000 will remain in the civil system, though the bill raises the burden of proof for forfeiture, meaning authorities will first have to show “clear and convincing evidence” that property is linked to criminal activity. Although this is a lower burden of proof than the “beyond a reasonable doubt” standard required for a criminal conviction, it is the highest standard in the civil system.
“This will ensure that we’re continuing the process of forfeiture against convicted offenders ― those who are harming our communities,” said Jenna Moll, deputy director of U.S. Justice Action Network, a bipartisan organization fighting to reform civil asset forfeiture laws at the state level. “Those who are un-convicted, innocent property owners will have that benefit of the doubt.”
Under the current system, the presence of large ― and in many cases, not so large ― sums of cash in a car or on a person can constitute enough probable cause to justify a seizure, even though carrying cash is not illegal by itself. Police will often seize property first, and then wait weeks or longer to file paperwork stating their intention to make the seizure permanent. Owners are often left to fight costly legal battles in which they must effectively prove their innocence in order to reclaim their property, thereby inverting the American legal principle of “innocent until proven guilty.”
Although the new law does not prohibit initial seizures of cash or property under $15,000, supporters believe the legislation will discourage police from haphazardly seizing property without evidence that it is actually a criminal proceed.
The new law also closes a loophole that had allowed Ohio police departments to sidestep state civil forfeiture laws by partnering with federal agencies in a program known as equitable sharing, which allows state and local cops to pursue forfeiture through the less restrictive federal process. HB 347 holds that transfers to federal authorities can only take place when the value of the seized property exceeds $100,000.
“This is one of the strongest anti-circumvention measures we’ve seen passed,” said Nick Sibilla, a communications associate at the Institute for Justice, a libertarian public interest law firm that believes all forfeiture should be tied to criminal proceedings.
“Law enforcement often uses equitable sharing in order circumvent state protections, but thankfully lawmakers have been prescient enough to add these measures to reform bills,” Sibilla added.
The Institute for Justice had previously given Ohio’s asset forfeiture laws a “D-” grade, citing weak protections for innocent property owners, lax reporting standards for forfeitures and a high rate of return for local law enforcement and prosecutors.
Civil asset forfeiture reform has become an increasingly bipartisan effort, as advocacy groups from across the aisle have joined together in the campaign to overhaul the process.
The public appears to be increasingly on board.
An overwhelming majority of Ohioans voiced support for reforming the state’s civil asset forfeiture laws, according to a survey conducted in 2015, though that poll, like others, also showed that many people aren’t aware of how law enforcement uses the tool.
As more people learn about the concerns surrounding civil asset forfeiture, the momentum for change will only continue to grow, said Moll.
“We’ve long held as a country that when the government is going to allege that you’re involved in criminal behavior, it has to come to court and they have to bring proof,” she said.
“What was important for Ohio legislators at the end of the day was the notion of fairness, of due process and constitutional principles that they really felt was lacking in the current system of forfeiture,” Moll added.