Last week, New Mexico became the second state to ban the practice of civil asset forfeiture, which allows state and local law enforcement agencies to seize property from innocent people.
Gov. Susana Martinez (R) signed HB 560 on Friday, which states that property can only be seized if a person is “arrested for an offense to which forfeiture applies, the person is convicted by a criminal court of the offense, and the state establishes by clear and convincing evidence that the property is subject to forfeiture.” In other words, property seizure is only permitted if a person is guilty of a crime. The bill, which received unanimous approval in the state legislature, was first introduced by Rep. Zachary Cook (R).
Under civil asset forfeiture laws across the country, people don’t have to be found guilty or charged with a crime to have their property taken from them. The laws incentivize the seizure of property to the benefit of law enforcement agencies, at the expense of innocent people — who are, often, low-income people of color. No type of property is off-limits, as cash, cars, and houses are routinely seized. And in many cases, law enforcement agencies collect assets under the guise of drug enforcement.
In response to the new law, State Director Emily Kaltenbach of the Drug Policy Alliance’s New Mexico office said, “Like other drug war programs, civil asset forfeiture is disproportionately used against poor people of color who cannot afford to hire lawyers to get their property back. This law is an important step towards repairing some of the damage the drug war has inflicted upon our society and system of justice.”
New Mexico passed the Forfeiture Act in 2002, which prevented law enforcement agencies from incorporating assets into their budgets, by requiring them to deposit the assets into a general state fund. But state and local police have successfully managed to work around the law. In 2012, the Institute for Justice, a libertarian law firm, published its “Policing for Profit” report, which assigned letter grades to states based on forfeiture laws and practices. The report concluded that New Mexico still collects an average of $2,421,827 per year in assets. Therefore, it one of 29 states with a “D” grade.
In one particularly egregious case in 2010, state police, Albuquerque Police Department, and Homeland Security conspired to seize $16,925 from a father and son who were on a road trip to Las Vegas. After they were initially pulled over by state troopers in Raton for driving five miles over the speed limit, the officer searched their vehicle, found the money, detained them for several hours on the size of the road, and disassembled the car. He also referred to the 60-year-old man as “boy.” When the father and son were finally able to leave, the officer told them that the ordeal “wasn’t over yet,” and they were pulled over again in Albuquerque for “improperly changing lanes.” A Homeland Security officer arrived at the scene, and took their money and car, before leaving the travelers stranded.
In 2012, the pair won a lawsuit with the help of the ACLU, and reclaimed the money that was taken from them two years prior. But most people aren’t so lucky. According to the Institute for Justice, law enforcement agencies in 42 states collect 50–100 percent of forfeiture proceeds. Before HB 560 was signed, New Mexico was one of 26 states that allows law enforcement to collect 100 percent.
Last January, Attorney General Eric Holder announced that federal agencies are no longer permitted to adopt assets — including cash, vehicles, and other valuables — seized by state and local law enforcement, except for limited public safety reasons. “This is the first step in a comprehensive review that we have launched of the federal asset forfeiture program,” he said. “Asset forfeiture remains a critical law enforcement tool when used appropriately — providing unique means to go after criminal and even terrorist organizations. This new policy will ensure that these authorities can continue to be used to take the profit out of crime and return assets to victims, while safeguarding civil liberties.”