Diverse Groups Hold Forum on Civil Asset Forfeiture

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In advance of the 2018 Alabama legislative session, panelists detail solutions to law enforcement’s unfair seizure of property.

Birmingham, AL – A diverse coalition of groups that oppose the law enforcement practice of seizing property from citizens without first obtaining a criminal conviction held an educational forum today, arguing that the Alabama State Legislature should outlaw the practice.

The organizations are making their case ahead of the 2018 Alabama legislative session, hoping to change current state law that allows the practice – also known as civil asset forfeiture. Under current law, Alabama’s law enforcement agencies are allowed to confiscate cash, vehicles and other private property on the mere suspicion that it was either involved in a crime or derived from criminal activity.

“In Alabama, law enforcement agencies can take your property even if you are never charged with a crime,” said panelist Frank Knaack, executive director of the Alabama Appleseed Center for Law & Justice. “You then have the burden to prove in court that your property is legally owned – that’s right, your property is guilty until proven innocent. To make matters worse, law enforcement are not required to report what they seize, how much they seize, and how they spend the proceeds. It’s a system that incentivizes the pursuit of profit over the fair administration of justice.”

Co-hosted by 11 diverse organizations and membership groups, panelists at the forum discussed the roots of civil asset forfeiture in the failed drug war, the problems of transparency, and the potential for abuse of the practice by law enforcement. Participants also discussed the prospect of necessary reforms in the Alabama legislative session of 2018.

The organizations want the Alabama legislature to strengthen the protection of individual property rights, eliminate the profit motive in the practice, and ensure transparency in reporting.

“Based on our analysis of the financial incentive for law enforcement to seize property, the government’s standard of proof to forfeit, and who bears the burden in innocent owner claims, Alabama earned a D-minus grade,” said panelist Lee McGrath, senior legislative counsel for the Institute of Justice. “No teacher or parent would be happy with that grade, and neither should Alabamians when their property and due process rights are at stake.”

Panelist Jordan Richardson, a senior policy analyst for the Charles Koch Institute, said policing should be about public safety, not profit. “States around the country, including Georgia, Florida and Mississippi, are moving in the right direction,” Richardson said. “Alabama should not risk getting left behind.”

Other states and the U.S. House of Representatives have recognized that civil asset forfeiture often does not align with the presumption of innocence and the respect for property rights that are bedrock principles of the United States.

“Civil asset forfeiture is unfair, undemocratic and un-American,” said Shay Farley, the Alabama Policy Counsel for the SPLC and moderator of the panel. “These laws turn the Constitutional provision that a person is innocent until proven guilty on its head. Luckily for Alabamians, the solutions are clear. The Alabama legislature can fix the problems in current practices by requiring criminal convictions before forfeiture of associated property, by placing proceeds from forfeiture into the state’s general fund instead of local law enforcement agency budgets, and by requiring public reporting of seizures and how the proceeds are spent.”

The forum, held at the Burr & Forman law firm, also referenced the stories of people who have been affected by civil asset forfeiture, including the family of Wayne Bonam. A few months after a drug task force in Covington County, Alabama, targeted Bonam in a raid, he passed away. Andalusia District Attorney Walt Merrell pressed on with civil asset forfeiture anyway, winning the case against Bonam’s home and his cash, and compounding the tragedy for his grieving family. The money from the seizure flowed into the task force, which was in the process of losing a federal grant.

In addition to Alabama Appleseed, the SPLC, the Charles Koch Institute, and the Institute of Justice, other co-sponsors of the forum included the Alabama Libertarian Party, the Alabama Policy Institute, the ACLU of Alabama, the American Constitutional Society – Alabama Chapter, the Drug Policy Alliance, Faith in Action Alabama, and the Federalist Society – Birmingham Lawyers Chapter.

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Rein in Policing for Profit

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Under both Alabama and federal law, if an individual law enforcement officer believes that your property (including cash) is tied to certain criminal activities, they can seize it, even if you are never convicted of – or even charged with – a crime. You then have the burden to prove in court that your property was legally obtained. That’s right – your property is guilty until proven innocent.

Under Alabama Law, law enforcement agencies can keep 100 percent of the proceeds from forfeited property. Under the federal program, Alabama law enforcement keeps 80 percent of the forfeited property, with the remaining 20 percent going to the federal government.

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 Alabama law, your property is guilty until you prove its innocence. To forfeit property in Alabama, the state need only show to the court’s “reasonable satisfaction” (preponderance standard) that the property in question is related to certain criminal activities. And, under most circumstances, the property owner bears the burden of proving that the property was obtained lawfully. It’s time for Alabama lawmakers to place the burden where it belongs – on the state.

Disproportionately harms Alabama’s most vulnerable. Victims of forfeiture abuse have no right to an attorney. Thus, those who seek to have their property returned by the state not only bear the burden of proving their property was lawfully obtained, but also the financial burden of hiring an attorney. This means that those who cannot afford an attorney must defend themselves. While no Alabamian should bear the cost of having their lawfully obtained property returned, Alabama’s most vulnerable are often left without any true recourse at all.

Incentivizes the pursuit of profit over the fair administration of justice.Under Alabama law, law enforcement keeps 100 percent of the proceeds from forfeited property. Thus, law enforcement agencies have an incentive to seize as much property as possible, knowing that for anything but real property the owner will then have the burden of proving the property was lawfully obtained. Because Alabama’s law enforcement agencies are not required to report the property they seize, we do not know the scope of the problem. But, if Alabama law enforcement agencies’ use of the federal asset forfeiture program is any measure, the problem is huge. Between 2000 and 2013 Alabama law enforcement agencies seized over $75 million dollars in property, and none of that required a warrant or indictment, much less a criminal conviction. Law enforcement should not be put in a position where they appear to value funding their budget over the protection of individual rights.

 The Alabama legislature must pass five basic reforms:

  1. Require law enforcement to secure a criminal conviction before allowing a forfeiture to proceed. Requiring the government to first prove that the individual whose property was taken actually committed a crime and then prove that the property seized was the product of that crime will place the burden back where it belongs – on the government. This straightforward step would protect Alabamian’s property rights while better ensuring that law enforcement are focused on public safety, not generating revenue.
  2. Require an accounting of the property seized under Alabama’s civil asset forfeiture program. Alabama’s program currently resembles a black hole because there’s no requirement that law enforcement report what they’ve taken from the public. It’s time for Alabama to being sunlight to its civil asset forfeiture program.
  3. Require the state to distribute forfeiture proceeds to its general fund budget instead of allowing law enforcement agencies to keep it. This reform would help remove the profit motive from this practice. Such reforms should be welcomed and supported by anybody who believes that in the eyes of the law, we are all innocent until proven guilty.
  4. Ensure individuals facing a civil asset forfeiture proceeding have access to quality, adequately funded counsel regardless of their ability to pay. Currently, Alabamians seeking to defend their property in court must hire their own attorney. Those who cannot afford an attorney must either represent themselves in court or give up their property. Access to justice is a cornerstone of our judicial system, and no Alabamian should be forced to defend their property without an attorney.  
  5. Prohibit Alabama law enforcement from using the federal civil asset forfeiture program unless it includes the requirements outlined above. The federal forfeiture plan should not be a loophole for law enforcement to bypass state policies designed to prevent abuse of this practice. Alabama should bar its law enforcement from participating in the federal program until these basic protections are in place.
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Prison Construction is the Wrong Approach for Alabama, Says Alabama Appleseed

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Montgomery, AL – Today the Alabama Department of Corrections (ADOC) announced a plan to hire a project management team to construct new prison facilities and renovate existing facilities. This announcement follows unsuccessful attempts in 2016 and 2017 to pass prison construction legislation through the Alabama Legislature.

“Alabama has a choice – it can embrace evidence-based reforms that have been proven to increase public safety and reduce the burden on taxpayers in other southern states, or double down on expensive and ineffective incarceration,” said Frank Knaack, executive director of Alabama Appleseed.

Overincarceration is not unique to Alabama. In 2007, Texas projected that the state would need to construct new prisons at a cost of approximately $2 billion. It chose another direction: Instead of building new prisons, Texas focused on front-end reforms, including funding treatment and diversion programs, and back-end reforms, including capping parole caseloads and expanding halfway house space and in-prison treatment programs.  As a result, Texas is slated to close its eighth prison in six years. South Carolina followed a similar approach, resulting in the closure of six prisons since 2010. And, both Texas and South Carolina have seen substantial reductions in their crime rates.

“As our neighbors in Texas and South Carolina have shown us, by creating more appropriate punishments for low-level offenders and reinvesting a fraction of the money that would have been needed to build prisons in community-based rehabilitation programs, we can reduce the burden placed on our taxpayers without jeopardizing public safety,” said Knaack.

While the specific timeline for prison construction is unclear under the ADOC plan, past prison construction proposals allotted five years for completion.

“The options are clear – Alabama can spend the next five years building new prisons and locking in a reliance on incarceration and a massive corrections budget for a generation to come, or we can spend the next five years implementing the reforms executed in Texas and South Carolina, placing Alabama on the path to closing prisons and reducing the burden on our taxpayers,” Knaack said.

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Alabama Appleseed Urges Governor Ivey to Rethink Alabama’s Drug Policy

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Montgomery, AL – The following statement is by Frank Knaack, executive director of Alabama Appleseed, regarding Governor Ivey’s decision to award $1.3 million to establish the Alabama Drug Enforcement Task Force:

“After more than 45 years of the War on Drugs, one thing is clear – we cannot prosecute our way out of drug use. Approximately one in every seven people in Alabama’s already overcrowded prisons are there because of a drug offense, yet drugs remain cheap and widely available. Doubling down on this failed strategy is an expensive and ineffective approach.

Alabamians would be much better served by redirecting money to treatment programs and other public health based responses that have been shown to reduce drug use and save lives. We urge Governor Ivey to reconsider her decision.”

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Alabama Appleseed Commends Senate Vote to Ban the Box on State Employment Applications

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Montgomery, AL – Alabama Appleseed today applauded the Alabama Senate’s vote to “ban the box” (SB 200) on state employment applications.

“Banning the box better ensures that Alabamians seeking state employment are judged on their merit, not their mistakes,” said Frank Knaack, executive director of Alabama Appleseed. “Denying a person’s application without considering their qualifications or rehabilitation prevents people who’ve completed their sentence from getting a fair chance at a fresh start.”

According to the U.S. Department of Justice (DOJ), more than 650,000 individuals are released from prison every year. The DOJ has identified three key elements to successful re-entry into our communities, one of which is finding and keeping a job.

“This legislation would help make our communities safer,” said Knaack. “Recidivism rates are reduced when individuals are able to successfully reenter their communities. By removing the criminal background box from state employment applications, individuals seeking state employment have an honest shot at securing a job. It’s a win-win – it provides people with a second chance to make an honest living and helps make our communities safer.”

SB 200 now moves to the House.

For additional information regarding SB 200, please read Alabama Appleseed’s fact sheet.

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Support SB 200 – Enhance Public Safety & Give People a Second Chance to Make an Honest Living

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SB 200 ensures that the State of Alabama, its agencies, and its political subdivisions cannot ask a prospective employee if they have ever been arrested for or convicted of any crime, with certain exceptions. A state employer may ask a prospective employee about their criminal background, but only after a conditional offer of employment is made. A state employer may withdraw the offer of employment after learning of the prospective employee’s criminal conviction background if the prospective employee has a conviction that is directly related to the job. SB 200 also establishes clear criteria for state agencies to consider during the screening process when evaluating a person’s prior criminal history.

Helps make our communities safer. Alabama has approximately 24,000 people in its prisons and another 13,000 in its jails. The vast majority of those individuals will be released and return to their communities. To reduce the recidivism rate, the U.S. Department of Justice has identified three key elements to successful re-entry into our communities. One of these key elements is helping these individuals find and keep a job. This legislation is a first step toward realizing a key element to reducing recidivism and making our communities safer.

Better ensures a second chance for Alabamians who have already paid their debt to society. Under current law, an otherwise fully qualified applicant can be denied employment long after they have completed their sentence. This practice erects counterproductive hurdles in front of individuals seeking to rebuild their lives and provide for their families. Denying a person’s application without considering their qualifications or rehabilitation prevents people who’ve completed their sentence from getting a fair chance at a fresh start.

African Americans are disproportionately harmed by the criminal history background box on employment applications. Because African Americans are disproportionately caught up in our criminal justice system, they are disproportionately harmed when seeking employment. For example, even though African Americans and whites use marijuana at roughly the same rate, African Americans are more than four times more likely to be arrested for marijuana possession in Alabama. Thus, those individuals will be disproportionately impacted when filling out a job application that includes a criminal history box. This bill offers an opportunity to begin to address the long-term consequences of a criminal justice system that disproportionately harms African Americans.

Protects Alabama from having to hire an individual whose criminal conviction is directly related to the job. Under this legislation a state employer would be permitted to withdraw the offer of employment after learning of the prospective employee’s criminal conviction background if the prospective employee has a conviction that “is directly related to the position of employment sought.” For example, this provision protects a state employer from being forced to hire a convicted embezzler to keep its books.

Helps protect state employers from claims of discrimination. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin. The U.S. Equal Employment Opportunity Commission (EEOC) issued a guidance document for entities covered by Title VII, including state and local governments, to help eliminate unlawful discrimination in the employment hiring process. As outlined in the guidance document, an employer must show that the selection criteria use or selection procedures are “job related and consistent with business necessity.” Specifically related to an applicant’s criminal record, the guidance says that the individualized screening process should consider “at least the nature of the crime, the time elapsed, and the nature of the job” or otherwise comply with the EEOC Uniform Guidelines on Employee Selection Procedures. SB 200 establishes clear criteria for state agencies to consider during the screening process when evaluating a person’s prior criminal record, which will better protect state agencies from claims of discrimination under Title VII.

SB 200 is a win-win! It better ensures that Alabamians are judged on their merit, not their mistakes and protects state employers.

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Alabama Appleseed Urges House Committee to Reduce Marijuana Possession Penalties

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Montgomery, AL – Alabama Appleseed today asked the Alabama House Judiciary Committee to favorably report HB 269, which would make possession of one ounce or less of marijuana a fine only offense ($250/first offense & $500/subsequent offenses) and ensure that a conviction for possessing one ounce or less would not result in a criminal record.

“This legislation provides Alabama with the opportunity to stop needlessly ensnaring thousands of people, disproportionately African American, in the criminal justice system each year for the mere possession of marijuana,” said Frank Knaack, executive director of Alabama Appleseed. “This legislation is not about whether marijuana is good or bad – it’s about not turning otherwise law-abiding people into criminals. The Alabama legislature should take this modest step.”

According to data submitted to the Alabama Law Enforcement Agency, in 2015 more Alabamians were arrested for the possession of marijuana than any other drug offense, including trafficking.

“The impact of an arrest for a drug offense is often significant and can last for years,” Knaack continued. “Even an arrest for the possession of a small amount of marijuana can affect an individual’s access to student financial aid, jobs, and the polls. It’s time for Alabama to take a common sense response to the possession of marijuana.”

While African Americans and whites use marijuana at roughly equal rates, in 2015 African Americans made up just 26.8% of Alabama’s population, yet made up more than 61% of all marijuana possession arrests.
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“Like with many of Alabama’s criminal laws, the war on marijuana is enforced along color lines. This legislation offers a small opportunity to address this disparity,” Knaack concluded.

For additional information regarding HB 269, please read Alabama Appleseed’s fact sheet.

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Support HB 269 – Ensure a Common Sense Response to the Possession of Marijuana

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HB 269 would make possession of under one ounce of marijuana a fine only offense ($250/first offense & $500/subsequent offenses). A conviction for possession of under one ounce of marijuana would not appear on the individual’s criminal record.

Alabama is turning otherwise law-abiding people into felons for merely possessing marijuana. Under current law, a person arrested for possession of marijuana can be convicted of unlawful possession of marijuana in the first degree (a felony) if they have a previous marijuana possession conviction, regardless of the amount. This is not just a problem on paper. In 2015, unlawful possession of marijuana in the 1st degree was the sixth most frequent felony offense at conviction (901 convictions). Between October 2010 and September 2015 there were 5,014 felony marijuana possession convictions. It’s time for Alabama to take the term “felony” seriously and ensure that individuals who possess marijuana for personal use are not turned into felons.

The war on marijuana wastes money and misuses law enforcement resources. Despite a war on marijuana now stretching into its fourth decade, prohibition has failed to eradicate or even diminish its use. In 2010 alone, Alabama spent $13,286,722 on the enforcement of its marijuana possession laws. These arrests involve a judge, a clerk, deputies, and prosecutors, all paid for by Alabama’s taxpayers. It’s time for Alabama to focus its resources on strategies and programs that will help keep our communities safe – investigating serious crimes and investing in substance abuse and mental health programs. It’s time to end this failed war.

The War on Marijuana Disproportionately Impacts African Americans. While African Americans and whites use marijuana at roughly equal rates, in 2015 African Americans were over four times more likely to be arrested for marijuana possession in Alabama.* To put it another way, in 2015 African Americans made up just 26.8% of Alabama’s population, yet made up over 61% of all marijuana possession arrests.* The war on marijuana is enforced along color lines.

The War on Marijuana needlessly ensnares Alabamians in the criminal justice system. In 2015, more Alabamians were arrested for the possession of marijuana than any other drug offense (2,642 arrests – 26 percent of all drug arrests were for marijuana possession).* The impact of an arrest for a drug offense is often significant and can last for years. Even an arrest for the possession of a small amount of marijuana can affect an individual’s access to student financial aid, jobs, and the custody of their child. The war on marijuana comes with a tremendous human and financial cost.

HB 269 would create a fairer, more compassionate, and smarter response to the possession of marijuana.

* This number just reflects data reported to the Alabama Law Enforcement Agency in its 2015 Crime in Alabama Report, available at http://www.alea.gov/Documents/Documents/CrimeInAlabama-2015.pdf.

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