Oklahoma Is the Latest State to Consider Curbing Police Power
Last April, Oklahoma State Senator Kyle Loveless saw a surprising news story. Spurred by advocacy groups from the left and right, the Democratic senate and Republican house in neighboring New Mexico had passed a bill reining in cops. Governor Susana Martinez, a Republican rising star and former prosecutor, had signed it into law. The issue that crossed partisan boundaries? Civil asset forfeiture, a long-standing practice giving law enforcement agencies the power to confiscate property tied to a crime, even if they haven’t brought charges against the owners or won a conviction. “I had always thought this is gang money or drug money or something,” says Loveless, a conservative Republican. “I started doing research online—I started seeing terrible stories of innocent people’s stuff being taken.”
In May, Loveless introduced a bill to reform the forfeiture system in Oklahoma. The latest version, filed on Jan. 20, would raise the burden on law enforcement to justify seizures. It would also create an oversight board to determine how forfeiture revenue is spent and would prevent the government from keeping most confiscated assets unless it has obtained a conviction. Cops and prosecutors have rushed to oppose the bill. “I think I bit the tail of Moby Dick,” Loveless says.
Loveless has support from an unlikely coalition of national conservative, liberal, and libertarian nonprofit groups, including the American Civil Liberties Union and Americans for Tax Reform, the anti-tax advocacy group run by Grover Norquist. Similar bills succeeded last year in Michigan and Montana, and others have been proposed in Ohio and Tennessee. “This is actually flipping the innocent-until-proven-guilty ideal on its head,” says Peter Bailon, general counsel of the nonprofit State Innovation Exchange, which promotes model legislation for state lawmakers around the country. Liberal groups emphasize the impact of forfeiture on communities of color, but conservatives focus more on the deprivation of property rights without due process. “Our activists, when they hear about it, they can’t believe it,” says Jason Pye, director of justice reform for FreedomWorks, a group backed by the billionaire brothers Charles and David Koch. “They think this is something that would happen in another country, a totalitarian regime.”
A growing number of horror stories have helped spark scrutiny. In 2014 police at Cincinnati/Northern Kentucky International Airport seized a college student’s $11,000 life savings because his luggage allegedly smelled of pot. Last year, an aspiring music video producer taking an Amtrak train from Michigan to California lost $16,000 in savings when a Drug Enforcement Administration agent who was questioning passengers confiscated his cash. “We don’t have to prove that the person is guilty,” the DEA agent in charge for Albuquerque, where the money was taken, later told the Albuquerque Journal. In 2008 officers in commando gear who showed up at a reception at the Contemporary Art Institute of Detroit, which didn’t have a liquor license, confiscated 44 cars from guests. A federal judge ruled in 2012 that the raid violated the Fourth Amendment and reflected a “widespread practice” by the department.
Law enforcement groups say such examples give an important tool a bad rap. “There does not exist a widespread problem of us taking assets from innocent citizens and them having to fight long battles to get their assets back,” says Eric Dalgleish, a Tulsa deputy police chief battling Loveless’s bill. Ceasing confiscations would make Oklahoma a magnet for crime, argues Tulsa County District Attorney Steve Kunzweiler. Drug traffickers often rely on “mules” who are rarely if ever charged or convicted of crimes, he says; preventing police from seizing the cash they carry would only enable their bosses to do business from afar. “Just Google ‘decapitated bodies hanging from bridge,’ ” Kunzweiler says. “That’s a reality for the citizens of Mexico, and I do not want that to be a reality for any citizen in the United States of America.”
Libertarians scoff at that line of argument. “The thumbscrew and the rack may also be useful tools for fighting crime, but we don’t use them,” says Roger Pilon, who directs the Cato Institute’s Center for Constitutional Studies and has been fighting what he calls “modern piracy” since the 1990s. It used to be a lonelier cause. A federal bill championed by Illinois Republican Henry Hyde, passed in 2000, imposed modest limits and notification requirements on federal forfeiture cases. The handful of groups fighting forfeiture back then had trouble getting more done. “It very much fell on deaf ears,” says Gary Daniels, the Ohio ACLU’s chief lobbyist. “People have been talking about asset forfeiture more in the last six months than I’ve seen in the 19 years before that combined.”
The cooperation across ideological lines marshals the strengths of each group involved. The libertarian law firm Institute for Justice, which compares and grades each state’s current laws, takes advice from the ACLU on where reforms are most likely to pass. The liberal State Innovation Exchange directs legislators looking for sample anti-forfeiture bills to model legislation developed by the Institute for Justice, which is similar to that offered by the conservative American Legislative Exchange Council. Experts from ideologically dissimilar organizations team up for awareness-raising panels: One held on Jan. 12 in New Hampshire was sponsored by the Charles Koch Institute, was moderated by Fox Business host John Stossel, and featured an ACLU attorney.
Last spring the liberal Center for American Progress and the conservative FreedomWorks co-hosted a lunch meeting on criminal justice reform for bloggers. It was “a trust-building exercise,” says Rebecca Vallas, managing director of CAP’s Poverty to Prosperity Program. Later, participants got together to socialize over drinks. Vallas told FreedomWorks’ Pye about her work defending Social Security and income assistance programs. “We were both able to laugh,” Vallas says, “and say, ‘You know what? We should probably only talk about criminal justice and whiskey.’ ”
The oddly paired activists aren’t winning everywhere. In California, which already restricts forfeiture more than most states, law enforcement lobbying quashed a bill that would have curbed collaboration with federal authorities on forfeitures. Sean Hoffman, the legislation director for the California District Attorneys Association, says his side prevailed by providing politicians with personalized estimates of the amount in forfeiture funds their local cops could lose. Still, he acknowledges that persuading legislators to side with law enforcement is harder than it used to be. “We had members who had never previously worked together or voted on each other’s bills teaming up” against forfeiture, Hoffman says. “I don’t want to say they’re wary of law enforcement, but we certainly have to answer for a lot of things that had not previously been issues.”