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Another View -- Gilles Bissonnette and Robert Peccola: It's time for NH to protect innocent property owners

February 29. 2016 10:12PM

Granite Staters rightfully pride themselves on personal liberty and respect for private property. But when it comes to a little-known law enforcement practice called civil asset forfeiture, New Hampshire leaves its citizens and their property vulnerable. Under civil asset forfeiture, innocent property owners in New Hampshire can permanently lose their cars, cash and homes, even when they are not accused of, or much less convicted of, a crime.

This practice turns constitutional safeguards upside down for innocent property owners. Under state law, if a criminal suspect uses someone else’s property to commit a crime, the innocent owner (like a spouse, parent or neighbor) is compelled to go to court and prove the negative; that they did not know about the suspect’s use of their property.

And if the owner does not have the resources to hire a lawyer, he or she is out of luck. There’s no right to court-appointed counsel in civil asset forfeiture cases.

Worst of all, with 90 percent of New Hampshire forfeiture funds going back to law enforcement, current state law creates a perverse incentive for law enforcement to go after cash, not criminals or contraband. It’s little wonder that a new report by the Institute for Justice, Policing for Profit, gave New Hampshire a D- for its civil asset forfeiture laws.

Bipartisan legislation recently passed the New Hampshire House of Representatives that would reform this system. HB 636 was introduced by Rep. Dan McGuire, with significant contributions from Reps. Paul Berch and Mike Sylvia.

HB 636 would end this profit incentive by depositing forfeiture proceeds into the general fund. Indeed, police departments that can finance themselves through asset seizures need not justify their activities through any regular budgetary process. It’s the role of the Legislature and municipalities to fund police activities through a transparent and accountable budgeting process. Recent history has demonstrated why this is important. For example, in 2014, the Attorney General’s Office accused former Rockingham County Attorney Jim Reams of manipulating a forfeiture account and using funds in an unethical manner.

HB 636 would also protect innocent owners by placing the burden on the state, rather than the property owner, to show that an owner claiming “innocent owner” status “was a consenting party to the crime.” Moreover, HB 636 would raise the burden on the state to prove that property is connected to a crime “by clear and convincing evidence,” and not by the more lenient “preponderance of the evidence” standard.

Finally, the bill would generally require a criminal conviction or a plea agreement before the state could forfeit property.

Time is of the essence to end dangerous incentives for policing.

The U.S. Department of Justice recently announced that it would suspend payments to states through a federal forfeiture program known as “equitable sharing.” By collaborating with a federal agency, local and state law enforcement get to keep up to 80 percent of forfeited funds derived from joint task forces with federal law enforcement agencies (e.g., the DEA and local sheriffs teaming up to go after drug proceeds).

Since 2000, the DOJ has provided New Hampshire law enforcement with more than $15.2 million in forfeiture proceeds under this federal “equitable sharing” program. By comparison, under state law addressing civil asset forfeiture, local police have received just over $1.1 million in proceeds since 1999. In other words, federal equitable sharing is New Hampshire’s primary source of forfeiture money for law enforcement.

But with this federal “equitable sharing” source of funding coming to an end for the moment, John Encarnacao, commander of the Narcotics and Investigations Unit at the State Police, testified that New Hampshire law enforcement “going forward, (are) going to be looking more towards the state (law).” This makes HB 636’s reforms at the state level all the more important.

Law enforcement defends its current practices by claiming that New England is stricken by an opioid crisis. But this is a red herring. Civil asset forfeiture offers a profit incentive to favor confiscating the proceeds of a drug sale over contraband itself. Put another way, law enforcement has an incentive to wait until a drug sale is complete before making an arrest. By then, drugs are in the hands of citizens, money is in the pocket of drug dealers, and the cash is ripe for seizure by police.

And nothing in the bill would prevent law enforcement from using forfeiture against those actually convicted in criminal court. No one convicted of a crime has a right to the fruits of that crime.

Placing policing before profit is the best way to benefit civil liberties, good police work and property rights. We encourage the Legislature to pass HB 636.

Gilles Bissonnette is the legal director of the ACLU of New Hampshire. Robert Peccola is an attorney with the Institute for Justice in Arlington, Va.

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