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OPINION | ZACH BURT: Need better law

Stop forfeiting our property rights by ZACH BURT SPECIAL TO THE DEMOCRAT-GAZETTE | June 5, 2021 at 8:51 a.m.

Gov. Asa Hutchinson recently signed into law "The Arkansas Civil Asset Forfeiture Reform Act of 2021," also known as Act 1023.

Sponsored by Senator Alan Clark, R-Lonsdale, the act attempts to change how spouses, parents and other innocent owners try to get back property that police seized from another person suspected of criminal activities.

However, the act will do little to reform the process of civil forfeiture in the state because it fails to address the core problem: Arkansas law enforcement is focused on seizing property with low-dollar values, very different from the mythology of cartel members hauling hundreds of thousands of dollars across Interstate 40.

Civil asset forfeiture is a legal mechanism that allows law enforcement and prosecutors to confiscate property used to commit a crime. Most often, seized property is cash, vehicles, and firearms, though sometimes it can be land or houses.

However, property can also be seized even if the person allegedly committing the crime does not own it. If you let a friend or relative borrow your car, and they committed a crime or are suspected of committing a crime while using it, law enforcement could seize and keep the vehicle, even if you did not know or consent to it being involved in a crime.

Seizures happen when law enforcement takes someone's property into their custody, whereas "forfeiture" refers to the state taking ownership of said property.

The act aims to increase protections for innocent, third-party property owners, such as spouses, parents, bankers and rent-a-car companies, whose property may have been involved in a crime. Act 1023 raises the burden of proof required for forfeiture from innocent, third-party owners. Currently, prosecutors must only show a "preponderance of the evidence" that an individual knew their property was being used to commit a crime. Act 1023 would raise this burden of proof to "clear and convincing evidence," meaning that prosecutors would have to make a stronger case before someone's property could be forfeited.

Unfortunately, the bill also has shortcomings.

Act 1023 still requires innocent, third-party owners to answer a civil complaint on someone else's actions. That is, when an innocent person's property is seized through no fault of their own, the burden is still on them to engage in the complex processes of civil litigation. They must prepare a formal answer to the government's complaint and file it with the county's civil clerk to even attempt to regain their property before it is forfeited. If the individual does not file the answer within 45 days, that property would be forfeited by default.

This is grossly unfair. In fact, it is 15 days less than the time the alleged suspect has to answer similar legal documents.

Two changes would have greatly improved Act 1023. First, the Legislature could require that an easily mailable form be created that simply required innocent owners to check a box and sign their name to contest forfeiture. This would make it much easier for citizens to claim their property and simplify the current process, which is confusing to navigate. Second, the time to file with the civil clerk could be extended beyond 45 days, giving citizens more time to understand the process and file correctly.

The bill is a far cry from Senate Bill 197, which Senator Clark introduced earlier in the session, and which would have offered new and necessary protections for Arkansans. SB197 would have made civil asset forfeiture a criminal process rather than a civil one. This means cases would have to be dealt with in criminal courts, where citizens are guaranteed the right to an attorney.

In civil courts, Arkansans do not have this right, and must pay for legal representation out of their own pockets. According to research done by the Institute for Justice, a public-interest law firm, the average legal costs for contesting seizures nationally amount to $3,000. No rational person would pay that much to get back property worth only $1,300, the median currency amount forfeited by law enforcement agencies across the country. However, such high legal costs relative to the low-dollar value of property seized is the norm in Arkansas.

SB197 would also have placed the burden of proof on the state to prove that property was not involved in a crime. Unfortunately, SB197 died in committee after heavy opposition from law enforcement and prosecutors. The much weaker Act 1023 took its place.

This practice goes against one of the guiding principles of our justice system--that we are innocent until proven guilty. Instead it forces citizens to prove their innocence in order to get back property that is rightfully theirs.

Unfortunately, Arkansans will have to wait a while with their property rights poorly protected until the next legislative session.


Zach Burt is a research and program assistant with the Arkansas Center for Research in Economics (ACRE) at the University of Central Arkansas in Conway. The views expressed are those of the author and do not necessarily reflect those of UCA.

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