Civil asset forfeiture is a legal procedure whereby police are able to take possession of an individual’s property if that property is suspect of being involved in a crime. In most states, no criminal conviction is required before property is seized. To seize assets in Arkansas, police only need to show that a “preponderance of the evidence” indicates the property was involved in a crime. This standard is far below the “beyond a reasonable doubt” that is required in criminal cases.
Additionally, since civil asset forfeiture is a civil and not a criminal process, there is no right to counsel. Individuals, especially those from lower-income areas, may be unable to afford an attorney to represent them, and in many cases, it may cost more than the property is worth to get it back. Also, unlike in criminal cases where the prosecution must prove the defendant’s guilt, in civil asset forfeiture it is property owners who must prove their own innocence.
While the new law stipulates a conviction is required before property is forfeited, it does not address the flaw that property owners still have to pay for legal representation or face navigating the complicated court system unaided.
Once property is seized, property owners are served with notice. If they do not respond within the set period, the case is then regarded as “defaulted.”
“Since it’s civil, a default is treated the same as any other civil case,” explained John Threet, a judge for the Fourth Circuit in Arkansas. “If you don’t answer after being served with notice, the prosecutor doesn’t have to go through proving the case.” In cases of default, forfeiture is automatically confirmed.
Here, then, is another loophole in the law: if a property owner does not reply the lawsuit in time and the case goes into default, a judge is allowed to waive the requirement for a criminal conviction. In 2018, there were 116 property seizures in Washington County and Benton County in northwest Arkansas. So far, 89 have been confirmed by default. To put this another way, more than 75 percent of property-based civil asset forfeitures last year would be unaffected by the new law.
“The origin of [civil asset forfeiture], as I’ve always understood it, was to kind of try to reach essentially the [drug] cartels,” said Tony Pirani, a lawyer based in Fayetteville, Arkansas. “It has become a law enforcement tool that is used increasingly over the years—and in some disturbing ways—against very low-level folks and in some pretty abusive situations.”
Critics of civil asset forfeiture point out that law enforcement agencies often get to keep the proceeds of forfeitures. In Arkansas, in most instances, 80 percent of the money goes to the prosecutors and police departments while 20 percent goes to the state’s Crime Lab Equipment Fund. Critics call this “policing for profit” and argue that police have a vested interest in stopping or watering down any reforms to civil asset forfeiture law.
In 2018 in Washington and Benton Counties, only two individuals ended up going to trial in an attempt to regain their property. At least one represented himself in court. Both failed to get their property back.
Civil Asset Forfeiture Attorney
If your lawful property has been seized, then you should hire a lawyer. Contact us to set up a free initial consultation and work with one of Florida’s most experienced civil forfeiture defense attorneys.