COMMENTARY: How Delaware preys on your private property

Public funding of law enforcement agencies and the courts is meant to promote a fair and publicly accountable justice system. Yet, 11 law enforcement agencies in Delaware are undermining public trust as they rake in big bucks from the seizure and forfeiture of private property.

Officially known as “civil asset forfeiture,” federal law allows local and state police officers to seize your cash, car or other private property on the mere suspicion that it is somehow connected to criminal activity — and without ever convicting you of, or even charging you with, a crime.

The property is then turned over to the federal Department of Justice (DOJ) for proceedings under lax federal civil forfeiture laws — not under often-more-stringent state forfeiture laws. This stacks the deck against private property owners.

In addition, federal “equitable sharing” rules allow Delaware law enforcement agencies to keep up to 80 percent of the proceeds recovered from the forfeited property.

Ronald Fraser

This federal gravy train is too tempting for some police departments to resist. Delaware state and local law enforcement agencies fattened their budgets in 2016 by more than $1.2 million through this practice, including the: Delaware State Police, $348,474; Dover Police Department, $60,705; Newark Police Department, $272,144; Wilmington Police Department, $238,881; the Smyrna Police Department, $23,77; and the New Castle County Division of Police, $121,434.

A substantial portion of these amounts are taken from completely innocent Delaware residents who cannot afford the legal representation needed to get their money and property back. The poor are hit the hardest.

Formally adopted municipal budgets are important administrative vehicles allowing locally elected officials to maintain control over their police departments. The federal “equitable sharing” program undercuts this control mechanism by setting up a back-door funding scheme not regulated by Delaware civil and criminal asset forfeiture laws.

And, by giving police officers a huge financial incentive to aggressively target forfeitable assets, rather than pursue justice, the feds invite property rights abuse.

What to do? According to the Institute for Justice, a Washington-based public-interest law firm, Delaware lawmakers should follow the lead set by New Mexico and end asset forfeiture property seizures.

The 2015 New Mexico Forfeiture Act requires property seized by local and state law enforcement agencies, with few exceptions, to be adjudicated in, and under, New Mexico laws. Here is how it works.

First, the state of New Mexico acquires provisional title to all property seized by state or local law enforcement agencies at the time the property is used or acquired in connection with an offense that subjects the property to forfeiture. Provisional title authorizes the state to hold and protect the property.

Second, New Mexico law enforcement agencies are not permitted to directly or indirectly transfer seized property to a federal law enforcement authority or other federal agency unless the value of the property exceeds $50,000 or the alleged crime is interstate in nature or sufficiently complex to justify transfer.

Third, a person’s property is subject to forfeiture only after he or she is convicted, by clear and convincing evidence, in a state criminal court, of an offense to which forfeiture applies.

Fourth, law enforcement agencies cannot retain forfeited property. Forfeited currency and proceeds of the sale of forfeited property must be deposited in the state’s general fund.

Placing similar restrictions on Delaware law enforcement agencies would rebuild trust. Property owners in Delaware would no longer wonder if their law enforcement officials are following even-handed, due-process procedures, or padding their agencies’ budgets at the citizens’ expense.

EDITOR’S NOTE: Ronald Fraser, Ph.D., writes on public policy issues for the DKT Liberty Project, a Washington-based civil liberties organization. Write him at fraserr@starpower.net.