Amid national debate, state lawmakers weighing a reformed civil forfeiture law

By JEREMY BLACKMAN

Monitor staff

Last modified: 2/20/2015 1:19:35 PM

State lawmakers showed a willingness to consider a previously defeated proposal that would overhaul a long-standing and nationally contested practice in which the government seizes private property that may be connected to a crime.



Members of the House Judiciary Committee on Wednesday acknowledged several improvements in the newest iteration of the bill, which limits asset forfeitures only to cases in which a person has been convicted of a crime, but said they planned to send it to a subcommittee for further edits.



The police are currently allowed to seize a suspect’s property without a conviction or even a criminal charge, including cash, and in turn keep a cut of the profits: 80 percent if seized under federal law, 45 percent if under state law. According to a 2012 subcommittee report, about $1 million worth of property was seized each year in New Hampshire, and all but $50,000 of that fell under federal forfeiture law.



The practice, known as civil asset forfeiture, has come under fire recently in parts of the country where police departments have been accused of abusing the system. Critics argue that it strips potentially innocent people of their due process rights, and that it incentivizes police seizures.



“A person should be innocent until proven guilty, not the other way around,” said Gilles Bissonnette, a staff attorney with the state chapter of the American Civil Liberties Union.



The bill, House Bill 636, would allow the police to continue seizing property, but would require a conviction for it to be forfeited permanently. It would also direct all proceeds directly to the state’s general fund.



Though forfeitures in New Hampshire are typically conducted using federal law, that is expected to change, following an announcement last month by U.S. Attorney General Eric Holder that barred local and state police officials from seizing property through the federal law.



Lee McGrath, a staff attorney at the Institute for Justice, which advocates for forfeiture reform, said the shift creates a new imperative for legislators in New Hampshire to replace the state’s old and draconian law.



Opponents, including the state departments of justice and safety, say there are no signs of abuse of the practice in New Hampshire, and that the proposal would divert a significant pool of money that helps fund investigations and other work critical to stemming an expanding opiate epidemic.



“There’s no question that in some parts of the country, law enforcement has abused the process,” said Lt. John Encarnacao, commander of the state police’s narcotics and investigations unit. “I don’t disagree with that at all – I’ve seen it. But I have not seen it here in New Hampshire.”



Assistant Attorney General James Vara, who heads the Department of Justice’s drug unit, said he handles all forfeiture cases for the department, and that last year there were 31, yielding about $58,000. The U.S. Attorney’s office in New Hampshire typically handles anything over $2,000, Vara said.



Vara noted that those who have property seized in New Hampshire are able to delay forfeiture in court.



“At no point in time – let’s be clear about this – can the department or any agency simply take the money,” he said. “We can’t. It just doesn’t happen that quick.”



The House has twice voted down similar legislation in recent years. The new bill, less than half the length of the first, was introduced by Rep. Dan McGuire, an Epsom Republican.



Superior Court Chief Judge Tina Nadeau has previously opposed the legislation, but she told the committee yesterday that she no longer had a position either way on it.



“I think Rep. McGuire has done a lot of work to respond to some of the concerns of folks,” Nadeau said. “It’s really been changed and improved and streamlined.”



McGrath said several other states are considering similar reforms, including Arkansas, Colorado, Florida, Georgia, Minnesota, Wyoming, Nevada, Montana and North Carolina.







(Jeremy Blackman can be reached at 369-3319, jblackman@cmonitor.com or on Twitter @JBlackmanCM.)





