We’ve all heard the horror stories about civil asset forfeiture laws: Parents go away for the weekend, their college-age child hosts a drug-infused house party, neighbors complain about the noise, the police show up, arrest the kid and his friends, confiscate the drugs and take ownership of the house. Even if the underlying charges are dropped, the parents can’t get it back unless they can convince a court they didn’t know or have any reason to believe their child would be using drugs in their absence.
More often it’s the family car that gets confiscated. Check that: More often, it’s stuff that drug dealers purchased with their drug money, because the law is used mostly as it was intended: to let police seize the profits of the illegal drug trade.
But the laws in our state and most other states were written in such a way that allows the gross abuses. Several states, and the federal government, have reformed their laws to protect the so-called innocent victims, and in 2019 the U.S. Supreme Court struck down an Indiana law that was similar to South Carolina’s — a ruling that prompted a circuit judge to stay asset forfeitures in part of our state.
So we were disappointed, but not surprised, that the S.C. Supreme Court overturned that decision last week and said police could keep using the law to seize cash, cars and any other property if they have “probable cause” to believe it might have been used in or derived from a crime — generally because they arrested the owner on drug charges. Under the law, people can’t get their property back unless they prove their innocence, which is the opposite of how our criminal justice system works but is allowed because the law claims that the “criminal” is the property, not the property owner.
The problem with this approach to the law (which Chief Justice Don Beatty called an “antiquated legal fiction”) is illustrated in the title of the case: Richardson v. Twenty Thousand Seven Hundred Seventy-One and 00/100 Dollars. But as the majority noted, while there certainly is room for abuse of the law, this wasn’t one of those cases. Rather, it was “a textbook case for the proper — and uncontroversial — application of the forfeiture statutes”: The person seeking the return of the money was convicted of all the drug charges against him, and there’s no reason to believe his assets were derived from anything other than the drug business.
Of course, it was the Legislature that wrote the law, and while it would have been nice to have the court force the Legislature’s hand, it always has been the job of the Legislature to fix it.
The House has shown a good deal of interest in reforming the law, and appeared on track to do so in early 2021, when the Supreme Court heard oral arguments in this case. The justices then sat on the case for 21 months, and lawmakers — as is too often the case under such circumstances — backed off: Why clean up a mess of your own making when there’s a chance someone else will do it for you? We hope the court’s decision removes that excuse and prompts lawmakers to act.
There’s nothing wrong with the idea of seizing assets that were derived from illegal activities. The problem is a law that allows those seizures to be extended to innocent parties — primarily parents but also someone who lets a down-on-her-luck friend borrow her car for the weekend, or use his apartment while he’s out of town.
The problem also stems from letting police keep 75% of the value of the seized assets, as South Carolina’s law does, which gives police a heavy incentive to find excuses to bring charges simply for the purpose of seizing assets.
That problem is compounded by scant reporting requirements, which have made civil asset forfeiture funds a favorite source of cash for sheriffs and other law enforcement officers who wind up on the other side of the law. Think former Florence County Sheriff Kenny Boone, who 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.
Former prosecutor and Speaker Pro Tem Tommy Pope filed a bill in early 2021, just before the court heard oral arguments in the Richardson case, that would have prevented police from seizing property unless they filed charges in connection with an underlying crime. It also would have required police to return the property if there was no conviction, and it would have made it much easier for innocent owners to get their property back. But like a handful of other bills filed over the past two years, it never made it out of committee. Lawmakers need to try again in January.
We agree with Justice Beatty that there’s something deeply disturbing about the whole framework of a law that pretends that the criminal is a thing instead of a person in order to reverse the innocent until proven guilty concept, but even if our lawmakers aren’t ready to abandon that approach, they need to build in serious safeguards for the innocent.