By Greg R. Lawson

Thank you, Chairman Butler, Ranking Member Stinziano, and members of the House Judiciary Committee, for the opportunity to testify regarding Amended House Bill 347. My name is Greg R. Lawson. I am the Statehouse Liaison at The Buckeye Institute for Public Policy Solutions.

The Buckeye Institute is a free market think tank. We believe that low taxes and limited government regulations help create a more prosperous Ohio. A cornerstone of a prosperous state is the robust defense of private property and due process rights. Without such rights, the free market does not function and will not remain free for long. In reforming Ohio’s civil asset forfeiture law, House Bill 347 takes an important step in defending those rights against overzealous attempts to ensure that criminals do not profit from their illegal activity. We can all agree that criminals must not keep their ill-gotten gains, and it is the just and proper role of the state to seize those illegal proceeds. Unfortunately, the state too often uses civil asset forfeiture without providing basic due process and property protections that a free and civil society demands.

Imagine attending an art museum event. While enjoying the music, the hors d’oeuvres, the Rembrandts, and Picassos, your evening party is rudely interrupted by a platoon of armored police who have turned off the music, cancelled the hors d’oeuvres, and—for reasons that you cannot quite understand—have towed your legally parked station wagon to the impound lot. Instead of making a charitable donation that night, you pay nearly a thousand dollars just to retrieve your car. Why? Because the event’s party-planner at the museum failed to pull the right permit to sell alcohol and the police determined that attending the party that night made you complicit in the illegal alcohol sales. Having attended the “illegal” party, your car—which had simply transported you to the event—is now subject to civil asset forfeiture. It sounds outrageous and unconstitutional. And according to some courts it is, but it still happened to some very surprised art enthusiasts in Detroit.[1]

The committee has heard the story of Charles Clarke, the 24-year old college student who lost his savings to drug enforcement agents at the Cincinnati/Northern Kentucky Airport. As the committee knows, Mr. Clarke was safe-guarding $11,000 that he and his mother had legally acquired and managed to save. Despite no weapons, drugs, or illegal contraband found on Mr. Clarke, his money was confiscated and remains in police custody because, according to police, his carry-on bag smelled funny. Mr. Clarke has never been charged with a crime, but thirteen law enforcement jurisdictions continue to fight for a slice of his confiscated savings.[2] How is this just?

The civil asset forfeiture system that makes these and too many other cases possible subverts due process and private property rights, and it needs to be changed. A legitimate tool in the fight against organized crime and drug gangs, civil asset forfeiture has tilted the balance too far in favor of the government and against innocent property owners.

Civil asset forfeiture laws date back to English common law in the Middle Ages. They were rarely used in the United States until the 1980s when law enforcement discovered their utility in the “War on Drugs.”[3] Federal and state law enforcement expanded civil asset forfeiture to target drug kingpins and organized crime families, and in 1984, Congress created a specific fund that allowed law enforcement to keep most of the proceeds gained from such seizures.[4] States quickly adopted similar statutes and funds allowing seized assets to go directly to the seizing agencies rather than to general accounts. This flawed structure creates perverse incentives for law enforcement and undermines the rule of impartial law.

Fortunately, Ohio’s civil asset forfeiture laws are better than in some other states, and the perverse profit incentives for state and local authorities are not as strong in the Buckeye State. But sensible improvements can still be made, and House Bill 347 makes several.

As the committee undoubtedly knows, the burden of proof in criminal cases always rests with the prosecution to prove a defendant’s guilt—not with the defendant to prove his innocence. But in civil forfeiture cases like Mr. Clarke’s, the burden of proof falls on the property owner—and other innocent parties such as children or spouses—to prove that they obtained their assets legally. House Bill 347 straightens this bent perversion of justice by shifting the burden of proof and requiring the government to prove that the seized assets were lawfully seized. Furthermore, the bill increases the standard of proof for forfeiture from the weak “preponderance of the evidence” standard to the more rigorous “clear and convincing” standard. These are significant remedies.

Under the current asset forfeiture laws, the U.S. Department of Justice can too easily circumvent Ohio’s legal requirements through the federal government’s “Equitable Sharing Program.”[5] Under this program, local and state law enforcement work with federal authorities and split the proceeds of the forfeiture 80/20—80% for local law enforcement, 20% for the feds. This is the program that is currently trying to divvy-up Mr. Clarke’s life savings among more than a dozen jurisdictions. House Bill 347 sets new limits on Ohio’s participation in the “Equitable Sharing Program.” Under the bill, Ohio will not participate in the sharing program in cases—like Mr. Clarke’s—where the seized assets are less than $50,000. This reform will help reduce perverse incentives for law enforcement, and keep the focus of civil asset forfeiture programs on drug lords and mafia kingpins—not party patrons and college kids.

Reform measures in HB 347 are right and reasonable. They bolster due process and property rights protections for citizens without jeopardizing the legitimate law enforcement uses for this type of tool. Even with the proposed reforms in House Bill 347, law enforcement will still be authorized to seize property suspected of being used in or gained by criminal activity, and to keep that illegally obtained property once a criminal conviction has been secured.

Considering the plight of Mr. Clarke and countless others that have suffered unjust forfeiture due to the perverse incentives created by the current system, statutory reforms are needed in order to restore the bonds of trust between Ohio citizens and the government officers that have sworn to protect them. The Buckeye Institute joins other organizations such as the Heritage Foundation, the American Civil Liberties Union, the Institute for Justice, and the Reason Foundation in recommending common-sense civil asset forfeiture reforms. Measures taken in House Bill 347 signal Ohio’s proper respect for due process and private property rights, and will prevent further erosion of the foundational bedrock that helps support her free market system.

Thank you for your time. I welcome any questions from the committee.

1. Sarah Stillman, “Taken,” The New Yorker, August 12, 2013, http://www.newyorker.com/magazine/2013/08/12/taken

2. Christopher Ingraham, “Drug cops took a college kid’s savings and now 13 police departments want a cut,” The Washington Post, June 30, 2015, https://www.washingtonpost.com/news/wonk/wp/2015/06/30/drugcops-took-a-college-kids-life-savings-and-now-13-police-departments-want-a-cut/           

3. “Arresting Your Property,” The Heritage Foundation, 2015, http://www.heritage.org/ForfeitureReform

4. Comprehensive Crime Control Act of 1984, Public.L. No.98-473, 98 State. 1837 (1984).

5. “Arresting Your Property,” The Heritage Foundation, 2015, http://www.heritage.org/ForfeitureReform