Idaho Governor Vetos Forfeiture Reform Bill

Commentary

Idaho Governor Vetos Forfeiture Reform Bill

Idaho governor Butch Otter vetoed a bill last week that would have modestly reformed the state’s civil asset forfeiture laws. HB 202, which passed both houses of the state legislature with overwhelming support, would have restricted the scope of forfeitable property, relieved prevailing property owners of having to pay the state’s costs, given courts discretion to modify forfeitures in the interests of proportionality, and imposed reporting requirements on state law enforcement agencies. In his veto message, the governor panned the efforts as a solution in search of a problem, but this bill was partly intended to establish what sort of problems might exist.

Idaho has no comprehensive reporting of forfeitures in the state. While the Institute for Justice characterizes the limited data as “suggest[ing] that Idaho’s law enforcement agencies probably only modestly pursue civil forfeitures,” without a detailed accounting of the kind that HB 202 would have required, it’s impossible to tell what problems may lurk beyond the available data.

The bill would have required every law enforcement agency in the state to compile information on the property seized in each case, details of any related criminal case, and the disposition of the forfeiture proceeding. These reports would have been submitted to the county prosecutor who would be required to keep them for seven years.

Beyond simply requiring state law enforcement agencies to report on forfeitures, the bill would also have implemented procedural reforms to limit the potential for abuse. Under current Idaho law, property subject to forfeiture includes all vehicles “used…in any manner to facilitate” not only transportation and delivery of controlled substances, but also their possession or concealment, which in forfeiture cases must be proven only by a preponderance of the evidence, an easy standard for law enforcement to meet. Furthermore, the list includes cash and other items easily converted to cash (jewelry, etc.) found “in close proximity” to forfeitable goods or which have been or are intended to be used in violation of state drug laws.

This bill would have also restricted forfeiture of vehicles to production and trafficking offenses specified in state law, but the bill left unchanged the low burden of proof. It also provided that officers couldn’t seize cash without some indication of criminal activity beyond quantity or proximity to contraband to establish probable cause. Both of these provisions would have curtailed law enforcement’s forfeiture powers over minor offenses or in cases where they might otherwise be tempted by large sums of money.

The bill would also have offered relief to innocent property owners who might otherwise be denied use of their property while awaiting the result of a forfeiture case. As it stands, Idaho law excludes property seized for forfeiture from “replevin,” a legal action which allows an owner to keep their property until the case is resolved. This bill would have provided that remedy in cases where the property was necessary for the owner’s employment or personal use and unlikely to be disposed of or used for criminal purposes, or where the seizure violated state forfeiture law. This would protect individuals against losing a car or some other crucial possession before getting a hearing in court.

In addition, the bill would have modified how forfeiture cases were resolved. First, under current Idaho law, even if a property owner prevails in a forfeiture case, they can still be made to pay the state’s or law enforcement agency’s costs from the seizure, such as towing or storage costs of seized vehicles. This bill would have struck that language, leaving the state to bear their own costs when the owner wins. Second, the courts currently have no power or duty to modify excessive forfeitures. This bill would have charged judges with determining whether the forfeiture was proportionate to the crime alleged and empowered them to tailor the forfeiture accordingly.

In vetoing the bill, Gov. Otter asserted that there was “no evidence to suggest” a problem with the state’s system of civil asset forfeiture and, further, that the bill offered no benefit to law-abiding citizens. Of course, the whole purpose of the reporting requirement, which he dismissed as “a misplaced effort to hold [law enforcement] accountable,” was to generate the data necessary to identify problems with the existing system. Furthermore, even if there isn’t widespread abuse of the existing system, that’s no reason not to address the potential for abuse, which this bill set out, however modestly, to do.

Unfortunately, the veto came only after the legislative session had ended, so there’s no opportunity for an override, but the Idaho legislature is to be commended for their broad support for asset forfeiture reform. Hopefully, their commitment will lead to a successful effort along these lines in the future.

Dan Spragens is a 2017 Spring Criminal Justice Reform Policy Intern.