Under a system called “asset forfeiture,” law enforcement officials have the right to seize your property—your home, your car, your business—even if you have not been convicted of a crime. Despite the Fifth Amendment’s assertion that no person “be deprived of … property, without due process of law,” police may take your property without convicting or even arresting you, leaving you to prove that your property has no connection to a crime.
Most victims of forfeiture are not criminals. Nearly 80 percent of the victims of forfeiture have never been indicted of a crime. Like the 75-year-old grandmother who lost her home because her drug dealer son once lived there. Or the salesman from Florida planning to spend his vacation gambling in Las Vegas, who had more than $9,000 seized at the airport because “only drug dealers carry that much cash.”
Assume for a moment that your property was seized. To get it back, you must prove that your property was never used in a crime. The alleged criminal conduct needn’t involve you—it could have just as easily been a crime allegedly committed by the previous owner of your property, or by someone who, unbeknownst to you, used your property in a criminal endeavor.
As unbelievable as this all seems, this is now the law! What’s more astonishing is that police have the right to keep and spend assets they seize. Thus, there is little incentive for law enforcement officials to voluntarily refrain from vigorously exploiting this tool.
Our judicial system is built on the presumption of “innocent until proven guilty,” with the standard of proof being “beyond a reasonable doubt.” The legislature needs to reform the system and make it consistent with these basic presumptions. As it is now, Nevada law only requires mere “preponderance of evidence” in order for property to be seized.
One reform bill, SB 36, will soon be presented in the Nevada Legislature. The bill is not perfect. For example, the bill will not require that a person be convicted criminally before the government may seize the property involved. It will not require the government to conduct an adversarial preliminary hearing prior to seizure.
SB 36 would increase the burden of proof to “clear and convincing evidence.” It’s better, but it is far from being “beyond a reasonable doubt.” That is a good start. Property should only be seized if it is being used to facilitate criminal enterprises.
And civil asset forfeiture proceeds should be turned over to the state’s general fund for equitable distribution of the proceeds among all state agencies. The funds should not be spent by the agencies that seize it.
The ACLU of Nevada urges state legislators to overhaul the way asset seizures are handled in Nevada. You can help reform the civil forfeiture system by contacting your representatives. Only with a complete overhaul of the system will we fully restore fundamental rights for all Nevadans.