ANNAPOLIS (Feb. 16, 2016)—A proposal to reform the process by which police seize property like cash and cars from suspected criminals in drug cases is pitting law enforcement against civil liberties groups.
Sen. Michael Hough, a Frederick Republican, told the Senate Judicial Proceedings Committee during a hearing Thursday that current procedures contradict constitutional protections such as due process.
"Modern American civil asset forfeiture is based on seventeenth century admiralty law, where basically the king would use it to charge an inanimate object with a crime to seize it and take ownership.
"No one should be acquitted of a crime in a criminal court and then lose their property in a civil court," Hough said.
Hough is proposing the bill with support from Sen. Jamie Raskin and Judicial Proceedings Chairman Bobby Zirkin, both Democrats.
Veto overriden of original bill
It was crafted to build upon reforms from a bill which was passed last year, vetoed by Gov. Larry Hogan, and then made law after the General Assembly voted in January to override that veto. SB 161 would tighten criteria before the government permanently takes ownership of seized property like houses, cash or vehicles, require new police reporting procedures, and make it easier for exonerated individuals to reclaim their assets.
It would also result in more seizures being processed under state law by requiring that property includes seized cash of $50,000 or more in order to be transferred to the federal government.
Hough said in the past many cases were transferred to federal authorities because the federal government shares up to 80% of seizure proceeds with local law enforcement agencies. But under state law, such money would go to the state's general fund instead of benefiting the police agencies who make seizure decisions, he said.
Cut in police revenues
The new bill could potentially cut general fund and local police revenues significantly as asset confiscations in drug cases will decrease, according to the fiscal analysis by the Department of Legislative Services. It also stated that compliance with reporting requirements will increase expenditures about $93,000 in FY 2017. However, recouping fees may offset increased costs.
Sen. Robert Cassilly. R-Harford, was skeptical of Hough's argument. He said it undermines the basis of American civil law and could potentially benefit large drug dealers living lavish lives.
"You could go to court and get acquitted on the criminal side—O.J. Simpson, and then somebody could file a civil claim against you and get $1 million in punitive damages, so aren't we, in what we're doing here, aren't we sort of giving special treatment to drug dealers—that says everybody else is subjected to these civil penalties, but not drug dealers?"
Supporters represent diverse coalition
The bill has support from a national organization for criminal justice reform. Holly Harris, an attorney who serves as executive director of the U.S. Justice Action Network and its subsidiary, Fix Forfeiture, rejected Cassilly's assertion that major drug dealers would be beneficiaries.
"You talked about getting to the assets of kingpins with horse farms and jets and millions of dollars, but that's just not the reality of the vast majority of seizures out there, which are typically $300 or less."
Harris's organization partnered with ideologically diverse groups such as the ACLU, NAACP, Americans for Tax Reform, FreedomWorks, Faith and Freedom Coalition, Center for American Progress, Right on Crime, and the Leadership Conference on Civil and Human Rights, all of whom supported the proposed legislation.
Naim Harrison, a victim of civil forfeiture, testified that after being stopped by Baltimore police several years ago under the suspicion he was distributing large amounts of marijuana, police confiscated several thousand dollars. As a result, he said he had to drop out of college. Police wanted information and allegedly attempted to coerce Harrison as quid pro quo before finally returning his assets. Harrison was never proven to have possessed or distributed narcotics.
Law enforcement officials oppose bill
State Police Maj. David Ruel Jr. testified against the bill alongside Harford County State's Attorney Joseph I. Cassilly, who led the opposition. (The state's attorney and the senator are brothers.)
Among Cassilly's many objections, was that the bill did not sufficiently address situations involving foreign nationals suspected of drug trafficking who had fled or been deported prior to being charged or subsequently convicted.
"Suppose the person isn't convicted because like the case I had—the defendant was from the Philippines—and as soon as he made bond-he went back to the Philippines." Cassilly also mentioned a case involving a deported Honduran suspect.
"What I am supposed to do with all the money that we've seized from these people once they've gone out of the country?" Cassilly asked.