Asset Forfeiture & Property Rights in S.C.


Low taxes, minimal regulations, a competent workforce. These are usually considered the most important qualities a state can foster in order to enhance the personal freedom and quality of life of its citizens, and make itself more attractive to outside investment. And understandably so. Too often overlooked, however, is the security of property rights. Government’s ability to protect private property, after all, is ostensibly the reason for its existence in the first place, and the question of whether a particular state government fulfills that role effectively should never be assumed.

In the current American system of governance, the primary agents of this protection of property are meant to be (a) the police and (b) the courts. In reality, however, one of these agencies, with at least the tacit consent of the other, is pursuing a policy that actively undermines the rights of citizens to own and use private property. The policy: civil asset forfeiture. It allows police to seize private assets judged to have any small connection to criminal activity and sell them off while keeping most of the proceeds.

Property owners need not be charged with a crime in order to have their assets seized. In fact, as Hendry Hyde points out in his book Forfeiting Our Property Rights: Is Your Property Safe from Seizure?, in 80 percent of forfeiture cases the property owner is not charged with a crime.

Why is that? Largely, it would seem, for this reason: Forfeiture laws provide law enforcement agencies with a perverse incentive to prioritize department budgets over citizens’ rights. Even in states with the mildest versions of these laws, the potential for abuse is high. Unfortunately, South Carolina has some of the worst and most easily abused forfeiture laws in the country – ranking the 12th worst in the country, according to a new report by the Mercatus Center, Freedom in the 50 States.

The Institute for Justice, in its report Policing for Profit: The Abuse of Civil Asset Forfeiture (on which the Mercatus rank is based), gave South Carolina a D+ for its forfeiture laws and described them as “dreadful.” South Carolina law only requires probable cause for a citizen’s property to be seized: a standard that is far lower than that required to obtain a conviction – the “beyond a reasonable doubt” standard – and that implies a presumption of guilt. If a South Carolina citizen wishes to contest the seizure of his property, the burden of proof falls on him. He must in effect prove he had no connection to the crime that allowed his property to be confiscated.

South Carolina law also allows 95 percent of the proceeds from the sales of assets seized under forfeiture laws to be kept by law enforcement. Of this 95 percent, 75 percent will be kept by the law enforcement agency and 20 percent goes to prosecutors. Such a high percentage presents an extremely strong temptation to abuse the law.

South Carolina law doesn’t require data on forfeitures to be preserved, so the full extent of abuse can’t be known. What can be known is federal forfeiture data tied to South Carolina, since this state, like most states, frequently uses the federal equitable sharing forfeiture program. In this method of asset forfeiture, federal officials can seize property (where the conduct leading to the seizure violated federal law) and will then return up to 80 percent of the value of the seized property to state and local officials. The data on the size of federal equitable sharing remittances to South Carolina shows the growing abuse of forfeiture law, with remittance payments increasing fourfold in under a decade – from $1.3 million in 2000 to $4.7 million in 2008.

Law-abiding citizens should not have to fear the seizure of their property by the public officials charged with protecting it. South Carolina should pull back in its participation in the federal equitable sharing forfeiture program and should further reform its own forfeiture laws. No South Carolina citizen should have his assets seized and sold prior to a criminal conviction; and in the event of such a sale of assets, the resultant funds should go into the state’s General Fund or another neutral fund instead of directly to law enforcement. Finally, the law should require law enforcement agencies to publish data on revenue from asset forfeiture and the recipients of that revenue.

South Carolina citizens have a right to expect at least this from their government: that it not actively undermine its own most important function.

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