September 08, 2015 / State
Civil Asset Forfeiture Hearings Marked by Consensus and Dissension
Jason Pye of FreedomWorks talks to a standing-room-only crowd via Skype about issues associated with civil asset forfeiture during a fourm at the Oklahoma State Capitol Tuesday, Sept. 1, 2015. Jay Chilton / MiddleGround News
Oklahoma City — Ideologically divergent state-based think tanks and nationally prominent opinion-leading institutions join forces in support of civil asset forfeiture reform as fellow Republican state senators host opposed hearings in separate cities.
Policy experts and witnesses, to what they believe to be dysfunction and abuse within the current system, met at the State Capitol at 9 a.m. on Tuesday, Sept. 1. The speakers gathered to participate in a panel discussion on the subject of civil asset forfeiture and Senate Bill 838–authored by Sen. Kyle Loveless, R-Oklahoma City, who also called for the public hearings.
In the weeks leading to the hearings, the Oklahoma Policy Institute found common ground with the normally-philosophically-distant fellow Oklahoma think tank, Oklahoma Council of Public Affairs on the subject of civil asset forfeiture reform in the state. Such was the agreement between the two institutions that Trent England, vice president for strategic initiatives for OCPA, and Gene Perry, policy director of OK Policy Institute, joined forces to write a joint policy letter advocating for changes in the state's forfeiture laws.
In addition to local thought leaders, national experts attended the discussion to offer testimony and persuade lawmakers to alter the current system to remove the opportunity for law enforcement agencies to indulge in what civil asset forfeiture detractors called "policing for profit."
The Heritage Foundation, a conservative think tank based in Washington, D.C., which has long been respected as a leader within the conservative movement, provided their pamphlet "Arresting Your Property" for attendees of the hearings and sent policy expert John Malcolm to speak on Heritage's behalf.
"Taxpayers end up having their property taken on a mere suspicion that that property is connected with illicit activity, and then forfeited for law enforcement purposes," Malcolm said. "That's a fundamentally unfair system."
At the same time, the American Civil Liberties Union, a widely respected civil liberties advocacy nonprofit corporation and litigation organization, found themselves arm-in-arm with unlikely ally Heritage fighting for reform in Oklahoma.
Jacquelyn Ford, attorney at law, quipped that she never thought she would be in the same room arguing for the same reforms as The Heritage Foundation.
Brady Henderson, former prosecutor and current legal director for the ACLU of Oklahoma, said criminal activity is often not necessary for asset forfeiture. He said that the Interstate 40 corridor is used by many law enforcement agencies for revenue generation. A claim supported by a report from Clifton Adcock of Oklahoma Watch on Aug. 4, 2015, which claimed more than 100 Oklahoma law enforcement agencies received $47.5 million via forfeiture between 2004 and 2014 with the Oklahoma Highway Patrol confiscating nearly three-fourths of the money and property.
"They're not there to keep the community safer," Henderson said. "It's to create more revenue."
Adam Bates of the Cato Institute, a nationally prominent libertarian think tank, also spoke in support of reform.
In the article, Outrage over Forfeiture Reform Is Unjustified, published in The Oklahoman on July 24, Bates outlined his argument for forfeiture reform.
"Any time government agencies are given an explicit profit motive to run roughshod over the rights of individuals, abuses will happen," he wrote.
Sen. Loveless introduced SB 838, the Personal Asset Protection Act, near the end of the 2015 session. The intention of the bill was to restore due process rights by requiring that an individual be convicted of a crime before property could be seized by the government. The bill would also direct the proceeds from forfeitures to the state's general fund rather than to the coffers of the enforcement agency.
"The issue with the current law is that the owner is presumed guilty until they can prove their innocence," Loveless said about the bill. "In America, we are proud of our tradition of innocent until proven guilty. Unfortunately, that's not the case with civil asset forfeiture. Under current law, the state simply needs to establish a mere suspicion that the property is involved in illegal activity, and the owner doesn't have to be charged with a crime."
SB 838 has received fierce opposition from many state and local law enforcement agencies.
"This is without a doubt the single worst, most damning, most asinine and devastating bill I have ever seen for this state and local law enforcement," Canadian County Sheriff Randall Edwards wrote about the proposed legislation in May. "Words can’t adequately express how this bill poses a serious and imminent threat to public safety and most directly the war on drugs in this state and nation. It’s completely asinine."
Edwards' central complaint is that SB 838 eliminates the profit motive often behind seizures of property.
"This bill takes proceeds from asset forfeitures away from local law enforcement, who make the majority of the seizures, and gives it to the state," he said.
As Loveless hosted reform-minded speakers in the State Capitol, Sen. Anthony Sykes, R-Moore, held civil asset forfeiture discussions in Tulsa.
Sykes is the Senate Judiciary Committee chairman, the committee to which SB 838 was assigned.
Originally, the hearings were expected to take place at the State Capitol, the normal site for such hearings. Yet in an unexpected turn of events, Sykes scheduled the hearings for Sept. 1 at the Tulsa Police Academy. The decision was seen by some as an attempt to limit news coverage, increase difficulty for out-of-state guest speakers and intimidate attendees to the hearing by holding the discussions at a law enforcement academy site. Sykes offered no explanation as to the unusual venue choice.
Loveless withdrew his request for a hearing following news of the unexpected site choice. Sykes issued a statement that the hearing would continue as planned.
"We have a long way to go before we reach the legislative session, and the issue of civil asset forfeiture will continue to be discussed," Sykes said in the statement. "The scheduled interim study on asset forfeiture and seizure will meet as announced, under a revised agenda posted last week. Senate Bill 838, which was filed earlier this year, has been assigned to the Senate Judiciary Committee, and it is important that we examine the issue. Severe accusations have been leveled against law enforcement and the judiciary from those seeking reform on this issue. It is very important that lawmakers and the public be educated on this issue as it relates to Oklahoma."
Loveless invited law enforcement representatives and opponents of forfeiture reform to speak at the Capitol but none accepted the invitation.