Interested Party Testimony Before the Ohio Senate Government Oversight and Reform Committee on Amended House Bill 347

Nov 30, 2016

Thank you, Chairman Coley, Vice Chairman Seitz, Ranking Member Yuko, and members of the Senate Government Oversight and Reform Committee, for the opportunity to testify regarding civil asset forfeiture and Amended House Bill 347. My name is Robert Alt.  I am the President and Chief Executive Officer of The Buckeye Institute for Public Policy Solutions.

The Buckeye Institute is a free market think tank. We believe that low taxes, limited government regulations, and a just application of the rule of law help create a more prosperous Ohio. A prosperous state also requires the robust defense of private property and due process rights. Without such rights, the free market in a free society does not function and neither will remain free for long.

For several years, I had the privilege to work for President Reagan’s former Attorney General, Ed Meese—a man who has dedicated his life to law and order, and not known to be soft on crime—so I am keenly aware of and thankful for the vital role that prosecutors and law enforcement officers play in serving and protecting our free society, and creating safe communities for Ohioans to work, live, and prosper.

Unfortunately, we are here now because some in the law enforcement community have abused the process of civil asset forfeiture, and that process needs reform. Horror stories of abusive civil asset forfeiture, of course, are the exception, not the rule. But rules and laws are often designed specifically to address exceptions and abuses—and civil asset forfeiture reform presents such a case.

Civil asset forfeiture grew out of the exigencies in eighteenth century maritime law as a means for disposing of confiscated pirate vessels. The owners of confiscated ships were often on another continent and, as you can imagine, extradition laws in those days were woefully ineffective. Asset forfeiture processes were needed because ship owners were decidedly unavailable—not because the government could not prove that a crime had been committed.

A legal procedure originally used to fight pirates has now legalized “piracy” by allowing the state to capture property from her innocent citizens and keep the bounty treasure.

As initially presented, House Bill 347 did away with civil asset forfeiture. Law enforcement and prosecutors objected with legitimate concerns that they might then be unable to secure criminal convictions in cases in which the property owner has died, absconded, or is—like an eighteenth century pirate—otherwise “unavailable.” Those concerns aligned with the original purpose of asset forfeiture laws—instead of pirate ships captured off the coast of Somalia, today’s officers routinely confiscate property owned by drug cartels in Mexico or Colombia.

Amended House Bill 347 returns civil asset forfeiture to its original purpose in those specific instances where the owner in question is unavailable to prosecutors and judicial officials. Such reform is unfortunately necessary because police and prosecutors have used the civil asset forfeiture process in circumstances for which it was never designed—namely, using the lesser protections afforded in a civil case to confiscate property and proceeds from owners who are ready and available to defend themselves against criminal charges. If the government’s theory of the case is criminal, then it should bring a criminal charge—with all the penalties and protections that entails. And if the defendant is available for trial, the government should not pretend he is unavailable

Law enforcement and prosecutors have offered various hypotheticals for the Committee to ponder, so allow me to ask the Senators to consider one of my own:

You own and operate a small roofing business. Roughly ten percent of your clients pay you in cash. After collecting on a few jobs, you have just over $10,000 in cash tucked in the glove box of your beat-up pick-up truck when you are pulled over on a traffic stop. The officer asks if you have anything in the car and, being a good honest citizen, you tell him about the roofing money. A few minutes later, a drug-sniffing dog from the K-9 unit arrives. You, like most people, do not realize that 90% of all U.S. currency tests positive for traces of narcotics. The K-9 officer detects the scent, and the police now have enough “probable cause” to seize your roofing money.

Much to your surprise, the government brings a legal action, not against you, but against your money—State of Ohio v. $10,000. That same $10,000, of course, is the money you need to make payroll or pay your mortgage this month—and it is now being “sued” by the state. You now—instead of making payroll—have the legal burden to prove that the seizure was improper—a burden you will unlikely meet because your cash, like everyone else’s, tested positive for cocaine.

You, as the owner of the cash, must now interplead in the State of Ohio v. $10,000 where the government need only prove by a mere “preponderance of the evidence” that your money was the proceeds of a crime. Of course, you committed no crime, but the case against your cash may take months for your legal team to resolve. In the meantime, you haven’t met payroll and you’ve fallen behind on your mortgage to pay your lawyers—who seem to bill you by the minute—all because you told the truth at a traffic stop and the state decided to treat you like a Barbary pirate. So even if your cash wins its case, you’ve lost. 

This scenario was an academic exercise, but for too many Ohioans it has been a harsh reality.

In the House Judiciary Hearings regarding this bill, attorneys told their clients’ stories. Attorney Michael Allen, for example, testified that one client had more than $16,500 seized—but was never charged with a crime—while a second client had his Hummer seized because he happened to be driving it when he bought a small amount of marijuana. The money and the Hummer were held for two years and one and a half years, respectively, before being returned.

Amended House Bill 347 takes a positive step in defending the property rights of Ohio citizens, while not impeding law enforcement’s ability to prevent crime, pursue criminals, and secure convictions. The bill adds measured safeguards to asset forfeiture proceedings by requiring a criminal conviction in most cases. Those safeguards may help return property more promptly and without subjecting property owners and small-time roofers to hefty legal bills.

Thank you for your attention and consideration.  I welcome any questions that the Committee may have at this time.