COMMENTARY: Private property is at risk in Delaware

James Madison declared way back in 1792 that in America, “Government is instituted to protect property of every sort … … to secure to every man whatever is his own.” That was then.

Today, according to a new Institute for Justice (IJ) report titled “Policing for Profit: The Abuse of Civil Asset Forfeiture, 2nd Edition,” “Civil forfeiture threatens the constitutional rights of all Americans. Using civil forfeiture, the government can take your home, business, cash, car and other property on the mere suspicion that it is somehow connected to criminal activity — and without ever convicting, or even charging, you with a crime.”

The report goes on to say, “The First State has some of the worst civil forfeiture laws in the country.”

Here is how laws in Delaware are stacked against property owners.

• Standards of Proof. Property suspected of involvement in a crime in Delaware is automatically assumed to be forfeitable. In most other states, law-enforcement officials need to show that the property was used in a crime based on “a preponderance of evidence” — meaning the government’s case need only be slightly better that the property owner’s. But even this low level of proof favoring the government, not the property owner, is absent in Delaware.

Ronald Fraser

• Innocent Owner Burden. What if someone other than yourself, a friend perhaps, allegedly uses your property to commit a crime and the police have seized your property? Because property owners are presumed to be somehow connected to a crime involving their property, in Delaware it is your legal responsibility — not the government’s — to prove that you had nothing to do with the crime and that your property should be returned to you.

• Police Profit Incentives. Converting private assets to public use is a big business in Delaware. Teaming up with forfeiture programs run by the federal Departments of Justice and Treasury — in effect, loopholes that allow state law-enforcement agencies to sidestep strict state laws — Delaware law-enforcement agencies raked in more than $9 million from the sale of forfeited property between 2000 and 2013.

Under Delaware’s statutes, law-enforcement agencies are allowed to keep, for their own use, up to 100 percent of the proceeds from the sale of forfeited property. Since there is no requirement for law-enforcement agencies to report their proceeds from forfeited property under state laws, the dollar figures are a mystery. This hidden financial pipeline is an even more powerful incentive for agencies to aggressively seize private property in anticipation of padding their bottom lines.

Looking to the future, the IJ report lists a number of steps needed to end property abuse in Delaware and in other states.

• Close Federal Loopholes. In many states, police agencies rely on these federal loopholes to both sidestep stiffer state forfeiture laws — such as the requirement that forfeiture proceeds must go to the state’s education budget — and to increase their cut of the seized properties. One national survey found that 40 percent of state and local police agencies consider civil forfeiture proceeds a necessary part of their budgets.

• Good news. Due to federal budget cuts, these federal loopholes have been, perhaps only temporarily, closed. To protect Delaware property owners, the IJ recommends permanently shutting down this law-enforcement gravy train.

• Not-so-good news. In response to the shutdown of the federal programs, the International Association of Chiefs of Police issued a statement saying the decision was “detrimental to state, local and tribal law enforcement agencies and the communities they serve.”

• Boost Standards of Proof. Raising the level of proof needed before private property can be forfeited is also needed. Under civil forfeiture laws, the property itself, however remotely linked with a criminal act, has “committed” a crime and can be seized. In most cases, to get seized property back, the owner must prove the property is innocent.

• End Conflicts of Interest. As long as a law-enforcement department’s prestige, and the reputation of its officers, is judged by how many assets are seized each year, police chiefs will have a strong incentive to push their officers to be more aggressive during raids, make unnecessary raids and cut legal corners.

Until law-enforcement agencies stop financially gaining from their seizures, Delaware citizens will continue to wonder why their police forces conduct drug raids. Are they to rid the town of drugs, or to fatten police department budgets?

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@erols.com.