New Model State Law Proposed for Asset Forfeitures

FORFEITURE August 1994

The National Conference of Commissioners on Uniform State Laws (NCCUSL) has approved a model asset forfeiture law for the states that would change the burden of proof needed by a state to subject a defendant's property to forfeiture ("Uniform Laws Conference Approves Model State Asset Forfeiture Law," Drug Enforcement Report, August 8, 1994, p. 1). The NCCUSL commissioners, who are appointed by the governors of their respective states, approved the model rule by a state-by-state vote of 49-2.

The new model rule sets the burden of proof as "a preponderance of the evidence" that property is tainted and subject to forfeiture. This is a higher standard than the "probable cause" standard long used for forfeiture under federal and most state law. The model law would remove control of asset forfeiture proceeds from law enforcement. Further, it guarantees the right to a jury trial in asset forfeiture proceedings.

"The use of the preponderance of the evidence standard ... recognizes that civil forfeitures are punitive in nature and serve as adjuncts to criminal law," the Report says.

The model law bars law enforcement from receiving proceeds beyond the cost of running their asset forfeiture program. Any excess would be turned over to the state or local government's operating budget.

"The current proposal is based on the proposition that giving seizing agencies direct financial incentive in forfeiture is an unsound policy that risks skewing enforcement priorities and creating conflicts of interest that may undermine the impartiality and objectivity of law enforcement agencies," the Report says. The model law also allows judges to "limit the scope of a forfeiture judgment to the extent the court finds the effect of the forfeiture is grossly disproportionate to the nature and severity of the owner's conduct."

The law opens avenues for defendants to challenge forfeitures. "Property owners may demand a preliminary hearing regarding whether probable cause exists for the forfeiture of property, whether less restrictive alternatives exist to the seizure of real property, or for the purpose of substituting a bond or other property for property subject to forfeiture," the Report says.

Among other provisions, the model law allows those who have not been charged with a crime to claim property without having to file a bond. Current federal law requires the posting of a bond of up to $5,000, even though the person has not been charged.

[This new model law has an interesting history. By the end of the 1980s, Congress had so extensively revised the Controlled Substances Act of 1970 that the Uniform Controlled Substances Act adopted by the NCCUSL for the States was out of date. A committee of NCCUSL was set up to write a new uniform drug law. Updating the forfeiture provisions was to be a key provision of the new uniform law. The associations of prosecutors and state Attorneys General, funded with grants from the U.S. Department of Justice, as well as DOJ "observers," strongly influenced the drafting committee to rewrite the Uniform Controlled Substances Act with powerful, pro-prosecution forfeiture provisions. The Criminal Justice Policy Foundation, represented by Eric E. Sterling, along with the National Association of Criminal Defense Lawyers, and representatives of organizations that are often creditors with secured interests in seized property, traveled to meetings of the NCCUSL committee, including their 1990 annual meeting in Milwaukee, to argue the dangers of overly broad forfeiture provisions. At the annual meeting, the controversy over the forfeiture provisions was such that the uniform bill was in danger of being rejected. The Commissioners voted to strip the forfeiture provisions from the Uniform Controlled Substances Act, pass that proposal, and create a new committee to study forfeiture law from the ground up, and propose a separate uniform bill. The prosecutors, realizing that they had lost, attempted to recapture their influence by threatening to boycott the new committee's deliberations. -- Editor]