Editorial: A ND law allowing cops to seize property without a conviction is in need of reform

Body: 

Consider this scenario: A man who sympathizes with a protest movement is inspired to drive thousands of miles from his home to deliver supplies to demonstrators. He decides to take part in a protest. He is accused of swerving and trying to ram into traffic. His pickup truck is seized by law enforcement officers. He is acquitted of the charges—but now finds himself in protracted and expensive civil litigation to get back his truck, which he depends on for his livelihood. Sound far fetched? It happened to Aaron Dorn, a New York man, who was arrested in 2016 in Mandan. He's still trying to get back his truck. Yet the confiscation of his property was perfectly legal—and utterly unjust.

It's a process called civil forfeiture, and it's intended to deprive criminals of assets they've accumulated illegally. That sounds good, and few would argue with taking away ill-gotten gains from a drug dealer, once he's been convicted. But as Dorn's case illustrates, civil forfeiture is ripe for abuse. A suspect's property can be confiscated long before a trial in North Dakota. And what is the burden of proof that law enforcement officers must meet to seize the property of a suspect who is presumed not guilty in criminal court? A low standard—the lowest allowed—probable cause. Then, as Dorn learned, even after an acquittal the burden of proof falls on his shoulders; he must prove to a judge's satisfaction that his property wasn't used for criminal purposes.

The law, in short, is seriously flawed. That's been recognized by a group called the Institute for Justice, which gave North Dakota's civil forfeiture law a grade of "F," one of just two states, along with Massachusetts, to earn that dubious distinction. A movement to reform civil forfeiture laws has been gaining momentum in recent years. Two neighboring states, Minnesota and Montana, changed their laws to require a conviction in criminal court before the state can force the forfeiture of property.

North Dakota's reform effort fizzled in the 2017 session, despite attention on the law's potential for abuse. Police officials and prosecutors, including Attorney General Wayne Stenehjem, assured lawmakers that law enforcement officials and judges strive to implement the civil forfeiture law fairly. Defense lawyers and legal rights activists testified in favor of the reform bill, contending there are in fact abuses; one lawmaker said he knew of "dozens" of cases.

In fact, nobody really knows how many Aaron Dorns are out there. That's because North Dakota doesn't require any reporting on civil asset forfeitures. We do know, however, that they add up. The reform bill would have meant substantial reductions in the amount of forfeitures law enforcement agencies could keep. The impact per biennium was estimated at $540,000: $300,000 for the Highway Patrol, $200,000 for the Office of the Attorney General and $40,000 for the Game and Fish Department.

That points to another flaw in the law: Up to $200,000 per case, enforcement agencies can pocket the money recovered from seizures, opening them up to allegations of "policing for profit." North Dakota can, and must, do better. Even one case like Aaron Dorn's is too many.

Editorials represent the views of Forum management and the Editorial Board