OPINION: Guest writer

OPINION | ZACH BURT: Need more reform

Forfeiture law still needs work

Arkansans know that as Americans we are innocent until proven guilty of a crime.

Unfortunately, this is not always the case. Individuals who have not been convicted or even charged with a crime can have their property taken away by law enforcement if it is suspected of being connected to criminal activity under a legal procedure known as civil asset forfeiture.

The process for getting your property back is confusing and almost impossible in some cases. Patricia Tackett of Hot Springs recently learned this when she saw a tow truck pulling her boat down the street. It had been parked at a nearby house Tackett owned where her adult son stayed. The same day, another boat and two cars were also towed from her property.

She later learned her son had been charged with a drug-related crime. Since her property was seized, she has been in a legal battle to get it back. Tackett is not alone; there are over 1,000 asset and property seizures in Arkansas per year.

Civil asset forfeiture is a legal process that allows law enforcement agencies to seize property that has been used, or suspected of being used, to commit a crime. Law enforcement officers make the initial seizure, and prosecutors decide whether the property is forfeited. Proponents argue it is a necessary mechanism to stop criminal activity.

However, innocent property owners end up as victims of this process as well.

Asset forfeiture is not just a problem in Arkansas, but it is a bigger problem here than in other states. In December 2020, the Institute for Justice (IJ), a public interest law firm, released the third edition of "Policing for Profit," a report that scores each state on the fairness of its civil forfeiture laws. Arkansas earned a "D-" for its laws related to this process.

Aaron Newell, an affiliated researcher of the Arkansas Center for Research in Economics (ACRE), compiled data showing that since 2010, $68 million in currency was seized by law enforcement in Arkansas. The state has averaged 1,400 seizures per year since 2010, or about four per day. In many cases, property is forfeited even though the owners are never charged with a crime.

In 2019, the Arkansas Legislature passed Act 476, which tried to reform state law. The law was intended to restrict seizures to cases where individuals are convicted of felony offenses, but it left huge loopholes.

For example, a person--not involved in the crime--must go into court and prove she did not know or consent to the use of her property in the crime. IJ found that nationally, the average legal costs for a person attempting to regain their property amount to $3,000.

Even though it was Patricia Tackett's son who committed a crime, and the seized property was not directly involved, the law puts the burden on Tackett to hire an attorney and prove that she was not party to the crime in order to get her property back.

The problem is even bigger for many Arkansans who have small amounts of cash seized through this process. An Arkansas Center for Research in Economics analysis of asset seizures finds that about half of the cash seizures are less than $1,000. Given that the cost of hiring an attorney is approximately three times as much as the amount seized, it does not make financial sense for any of these individuals to contest the seizures.

What can be done? New Mexico, North Carolina, and Nebraska have all made meaningful reforms that go even further than Arkansas in protecting the property of those who have committed no crime.

In New Mexico, forfeiture cases are now handled through criminal courts, where individuals have the right to an attorney. The burden of proof is placed on the government to prove third-party owners knew their property was being used to commit a crime.

Arkansas state Sen. Alan Clark, R-Lonsdale, recently introduced Senate Bill 197, which would fix many of the problems left by Act 476. It would make forfeiture a criminal process rather than a civil one and place the burden of proof on the state instead of innocent third-party owners.

Arkansans need better protection for their property rights. While individuals that break the law should be punished, the foundation of our legal system is that we are innocent until proven guilty--that should include our property as well.

Zach Burt, Ph.D., is a research and program assistant at the Arkansas Center for Research in Economics at the University of Central Arkansas. The views expressed are the author's and do not necessarily reflect those of UCA. ACRE does not campaign for, promote, advocate, or support specific political parties or political candidates.