We’ve all heard horror stories about civil asset forfeiture laws: parents go away for the weekend, their college-aged kid throws a drug-infused house party, neighbors complain about the noise, the police show up, arrest the child and his friends, confiscate the drugs and take possession of the house. Even if the underlying charges are dropped, parents cannot get it back unless they can convince a court that they did not know or have no reason to believe that their child would use drugs. drugs in their absence.
Most often, it is the family car that is confiscated. Check that: more often than not, these are things that drug dealers have bought with drug money, because the law is used mainly as intended: to allow the police to seize profits from drug trafficking illegal.
But the laws of our state and most other states have been crafted to permit gross abuse. Several states and the federal government have reformed their laws to protect so-called innocent victims, and in 2019 the US Supreme Court struck down an Indiana law similar to South Carolina’s – a decision that prompted a circuit judge to stay active forfeitures in part of our state.
So we were disappointed, but not surprised, that the SC Supreme Court overturned that decision last week and said police could continue to use the law to seize cash, cars and other property if they had “probable cause” to believe it could have been used. in or derived from a crime – usually because they arrested the owner for drug dealing. Under the law, people cannot get their property back unless they prove their innocence, which is the opposite of how our criminal justice system works but is allowed because the law says the ‘criminal’ is the property, not the owner.
The problem with this approach to the law (which Chief Justice Don Beatty called an “archaic legal fiction”) is illustrated in the title of the case: Richardson v. Twenty thousand seven hundred seventy-one and 00/100 dollars. But as the majority noted, while there is certainly room for abuse of the law, this was not one of those cases. Rather, it was “a textbook case for the correct – and uncontroversial – application of forfeiture laws”: the person seeking the return of the money was found guilty of all drug charges brought against it, and there is no reason to believe that its assets were derived from anything other than the drug trade.
Of course, it was the legislature that wrote the law, and while it would have been nice for the court to force the hand of the legislature, it was always the duty of the legislature to fix it.
The House has shown a lot of interest in reforming the law and seemed on track to do so in early 2021 when the Supreme Court heard oral arguments in the case. Judges then sat on the case for 21 months, and lawmakers — as is too often the case in such circumstances — backed off: why clean up a mess on your own when there’s a chance someone will. someone else do it for you? We hope the court’s decision removes that excuse and inspires lawmakers to act.
There is nothing wrong with the idea of seizing assets from illegal activities. At issue is a law that allows these foreclosures to be extended to innocent parties – mostly parents, but also someone who lets an unlucky friend borrow their car for the weekend or use their apartment while they’re away. outside of the city.
The problem also stems from letting police keep 75% of the value of seized assets, as South Carolina law does, which strongly encourages police to find excuses to lay charges simply for the purpose of seizing. actives.
This problem is compounded by the lack of reporting requirements, which have made civil asset forfeiture funds a preferred source of cash for sheriffs and other law enforcement officers who find themselves on the other side of the law. Think of former Florence County Sheriff Kenny Boone, who embezzled thousands of dollars in seized assets during a narcotics interdiction operation he led for years along Interstate 95 , using the money to buy bike gear, tinted windows, baseball gear, electronics and clothing.
Former prosecutor and Pro Tem chairman Tommy Pope introduced a bill in early 2021, just before the court was to hear oral arguments in the Richardson case, that would have prevented police from seizing property unless they have filed charges in connection with an underlying crime. It would also have forced the police to return the property if there had been no conviction, and it would have made it much easier for innocent owners to recover their property. But like a handful of other bills introduced in the past two years, it was never sent from committee. Lawmakers are due to try again in January.
We agree with Justice Beatty that there is something deeply troubling about the whole framework of a law that claims the criminal is a thing instead of a person in order to reverse the concept of innocent until proven otherwise, but even if our legislators are not ready to abandon this approach, they must put in place serious safeguards for the innocent.