We were glad to see the S.C. Supreme Court displaying some serious skepticism last week about a South Carolina law that allows police to seize cars, cash and other assets from people who might have committed a crime and keep them unless the owners can prove their innocence. Even if the assets belong to someone unconnected to the crime. Even if there was no underlying crime.
As The Post and Courier’s Nathaniel Cary reports, the justices hammered an attorney who was defending the state's civil-asset forfeiture law, which not only sets a low legal standard for seizing property — a serious problem even if the law isn’t abused — but also gives a financial incentive for police and prosecutors to seize assets even if they don’t have a strong case for an underlying crime, and then agree to drop criminal charges in return for people not contesting the civil forfeiture.
The attorney, representing a Myrtle Beach solicitor, was appealing a 2019 Circuit Court ruling that had placed a stay on all forfeiture cases in that part of the state after the U.S. Supreme Court struck down a similar law in Indiana, finding that it violated the U.S. Constitution's ban on excessive fees and fines.
Whether our law violates the Constitution or not, it certainly violates any sense of fairness. It allows police to seize your cash or your car or any other property if they have “probable cause” to believe it might have been used in a crime — generally because they arrest you on drug charges. You can’t get your property back unless you prove your innocence — which is the opposite of how our criminal justice system works. In the worst cases, police can seize the property of so-called “innocent victims” — say if police find drugs on a teenager who’s driving the family car — and those victims can't get it back unless they prove they didn't know their child had drugs.
And since police get to keep 75% of the value of assets, with little public reporting required, it's no surprise that civil asset forfeiture funds have been among the favorite sources of cash for sheriffs and other law enforcement officers who have wound up on the other side of the law. For example, former Florence County Sheriff Kenny Boone embezzled thousands of dollars in assets seized through a narcotics interdiction operation he ran for years along Interstate 95, using the money to buy bicycle equipment, window tinting, baseball equipment, electronics and clothes.
While we welcome the court’s review, we’re disturbed that it’s even necessary. Our Legislature created this law, and it’s been clear for at least the two years since the U.S. Supreme Court struck down the Indiana law — and frankly, for much longer — that South Carolina’s law doesn’t pass the smell test.
The good news is that again this year, House members seem interested in reining in the law. Speaker Jay Lucas included it on a short list of topics for a special House Equitable Justice System and Law Enforcement Reform Committee to work on this summer, and a week before the Supreme Court hearing, that panel gave its blessing to a plan to eliminate civil asset forfeiture.
Former prosecutor and Speaker Pro Tem Tommy Pope filed a bill last week that would prevent police from seizing property unless they filed charges in connection with an underlying crime. Also, police couldn’t keep the property without a conviction, and it would be much easier for innocent owners to get their property back. There’s plenty of room to debate some of the specifics — primarily how the proceeds will be distributed — but H.3619 covers the essential reforms needed.
The bad news is that “again this year” part. The House has been talking about this for years, and a lot of lawmakers have signed on to cosponsor reform legislation, but for a variety of reasons, our law remains on the books and is still in use across most of the state. That can’t continue. We hope that lawmakers will be incentivized to act by the knowledge that the justices could take the situation out of their hands. We hope the justices won’t have to do that.