Imagine that you're driving down the road to buy a used car when you are pulled over by law enforcement. The officer discovers the $1,500 in cash you're carrying, alleges it is the product of a crime, and takes it. You, however, are not charged with a crime, and if you want your money back, you'll have to go to court and prove that it didn't come from illegal activity. If you don't, law enforcement can keep your money. It's a practice called civil asset forfeiture that's allowed under federal and South Carolina law.
That’s right. Civil asset forfeiture allows the government to take and keep your property without even charging you with a crime.
This Thursday the SC House Judiciary Committee’s Criminal Laws Subcommittee will consider H. 3619. This marks the first step toward ending the abusive use of civil asset forfeiture in South Carolina. H. 3619 would eliminate civil asset forfeiture, replacing it with a criminal forfeiture process that would strengthen the fair administration of justice and better protect South Carolina’s most vulnerable.
Here’s why this legislation must pass in this session.
Civil asset forfeiture turns the presumption of innocence on its head. A cornerstone of the American justice system is the principle that one is innocent until proven guilty. Yet under South Carolina law, your property is guilty until you prove its innocence. Currently, law enforcement agencies can seize and confiscate cash, vehicles, boats, houses, and other private property on the mere suspicion that it was either involved in a crime or derived from criminal activity. Forfeiture to the government occurs when a civil court determines the government can keep the property. In these court proceedings, while the initial burden falls on the solicitor, the low standard of proof means that the property owner carries the burden of proving that their property is “innocent” of the alleged crime. Between 2014 – 2016, The Greenville News found in 19 percent of the forfeiture cases the person whose property was taken was never even charged with a crime. And, in a roughly equal percentage of cases, the person was charged, but not convicted of a crime. It’s time to place the burden where it belongs - on the state.
Civil asset forfeiture incentivizes the pursuit of profit over the fair administration of justice. Under South Carolina law, law enforcement and solicitors keep 95 percent of the proceeds from forfeited property. Thus, law enforcement agencies have an incentive to seize as much property as possible, knowing that they need only meet the lowest burden of proof to keep it. Under South Carolina’s civil forfeiture program, more than $17 million was awarded to local law enforcement between 2014 – 2016 alone. Under the federal program, where South Caroline law enforcement can keep up to 80 percent of the proceeds, between 2000 and 2013 South Caroline law enforcement agencies received over $74 million from the federal forfeiture programs, and none of those seizures required a warrant or indictment, much less a criminal conviction. Some South Carolina law enforcement agencies have even admitted to policing for profit. Clemson Police Chief Jimmy Dixon told The Greenville News that losing the forfeiture money could result in the loss of his department’s K-9 unit. Law enforcement should not be put in a position where they appear to value funding their budget over the protection of individual rights.
Civil asset forfeiture has strayed far from its alleged purpose. Civil asset forfeiture was sold to the public as a tool for taking the ill-gotten gains of drug kingpins. In practice, drug kingpins are rarely the target: The Greenville News found that in more than 55 percent of the cases, the amount of cash seized was less than $1,000. One thousand dollars is often less than the typical cost of hiring an attorney to challenge the seizure in court, which could explain why over 70 percent of the disposed cases, the property owner did not contest the seizure in court. The original justification for civil asset forfeiture is further undermined by the fact that in 19 percent of the cases the individual whose property was seized was never charged with a crime and in a roughly equal percentage of cases, the person was charged, but not convicted of a crime. In practice civil asset forfeiture in South Carolina has not targeted drug kingpins, but instead innocent South Carolinians.
Civil asset forfeiture laws lack transparency. South Carolinians are often in the dark about what law enforcement have taken from the public or how they spend the proceeds from the property they’ve taken. The Greenville News reported that at least two judicial circuits have hidden their police seizure records and more judicial circuits may be doing the same. Transparency is a cornerstone of good government. It’s time for South Carolina to bring sunlight to its forfeiture programs by having reporting requirements.
Civil asset forfeiture leaves South Carolina’s most vulnerable with little recourse. Victims of forfeiture abuse have no right to an attorney because it is a civil process. Thus, those who seek to have their property returned not only bear the burden of proving their property was lawfully obtained, but also the financial burden of hiring an attorney. As The Greenville News found, in more than 55 percent of the cases, the amount of cash seized was less than $1,000. That means in the majority of cases, the amount taken was less than the typical cost of hiring an attorney to challenge the seizure in court, which could explain why in more than 70 percent of the disposed cases, the property owner did not contest the seizure in court. While no South Carolinian should bear the cost of having their lawfully obtained property returned, the most vulnerable who cannot afford an attorney are often left without any true recourse at all.
Low-income South Carolinians are particularly hard hit by civil asset forfeiture. People with low-income are more likely to be disconnected from the financial mainstream, leaving them more likely to carry cash. And, South Carolinians are more likely to be disconnected. A 2017 survey by the FDIC showed that South Carolinians are more likely than average to be “unbanked” and “underbanked.” Because unbanked and underbanked individuals are often forced to carry relatively large sums of cash—such as a full month’s rent payment or wages from an entire pay period—they can be especially vulnerable to cash seizures through civil asset forfeiture. South Carolina must better protect the property rights of its low-income residents.
Civil asset forfeiture disproportionately impacts Black people. Black people in South Carolina are disproportionately targeted by our criminal justice system. For example, while Black and white people use marijuana at roughly equal rates, in 2018 Black people were 3.5 times more likely to be arrested for marijuana possession in South Carolina. As The Greenville News found, Black people are disproportionately harmed by civil asset forfeiture too. The paper found that 65 percent of the cases impacted Black people, even though Black people comprise only 27 percent of South Carolina’s population. Civil asset forfeiture, like South Carolina’s criminal justice system more generally, disproportionately targets Black people.
Contact your state legislators today and urge them to end civil asset forfeiture in South Carolina.