It was a cold March morning in 1981 when President Ronald Reagan took to the stage at the Washington (D.C.) Hilton Hotel and famously proclaimed, "Government's first duty is to protect the people." It's a sentiment that harkens back to our nation's founding fathers, though these words have withstood the test of time. It's because our safety is inextricably -- and undeniably -- linked with our liberty.
It's why as Alaskans, we dutifully support our police and those who protect us. They bravely tackle missions both improbable and impossible and do so with courage and composure. It's a shame, then, Alaska maintains some of the most ill-serving forfeiture laws in the nation. In effect, we allow our police to seize and permanently keep private property from individuals suspected of being involved in criminal activity, even if that person is never found guilty or even charged with a crime. We also allow police to seize property from owners and others holding interests without proper recourse.
It is a practice that violates our ideals as a state. Alaskans know better than most that you can protect the public without sacrificing liberty. Civil asset forfeiture is wrong and we must do better.
A report from the Institute for Justice confirms Alaska's civil forfeiture laws are among the worst in America. The government has to meet a very low standard of proof to permanently deprive owners of their property. The property itself is presumed guilty and the burden is on owners to reclaim their belongings and prove the property is innocent. Significantly, there is a lack of uniformity among and between myriad laws relating to forfeiture. Some of the laws permit automatic forfeiture to the state if no owner files a claim to challenge the seizure within a short period. Additionally, there is a lack of transparency because there are no record-keeping or reporting requirements for law enforcement authorities that seize and forfeit private property.
Perhaps most disturbing is that civil asset forfeiture laws provide law enforcement agencies with actual incentives to seize property, because they get to keep most of the revenues generated and thereby profit from the process. Imagine the dynamic this creates in an environment of budget tightening, like Alaska is facing.
Legislators of all political stripes and from every corner of the country are demanding reform. This is one of the rare issues where lawmakers from the left and the right are standing together to protect the public from governmental overreach.
Asset forfeiture reform is gaining momentum in many areas of the country, a trend that is likely to continue in the months and years to come. New Mexico, for example, passed sweeping forfeiture reform legislation, providing some of the strongest protections against wrongful seizures in the country. Montana also passed a law recently to eliminate forfeitures without a conviction, while Michigan implemented reforms to both raise the burden of proof for forfeitures and increase transparency. Even at the federal level, bills have been introduced in both houses of Congress that seek to scale back some of the most problematic aspects of civil forfeiture. Alaska's lone Congressman, Rep. Don Young, is one of 32 House co-sponsors of HB 540 -- the Fifth Amendment Integrity Restoration Act (FAIR Act) -- which represents the most significant asset forfeiture reform bill in more than 15 years.
Though asset forfeiture can serve legitimate law enforcement purposes, it has been distorted from its original intentions. It has devolved into a revenue-generating system in which police can arbitrarily seize and forfeit property from a person who is never even charged with a crime, or in which others have interests. There is a general lack of uniformity with our current legal framework that invites selective, inconsistent and unseemly application. It is time to restore one of the most basic tenets of constitutional law. It is time to stop these unfair and harmful practices. It is time to reform our forfeiture laws.
Kevin Fitzgerald, a former state prosecutor, has practiced law for more than 28 years. His current practice involves both civil and criminal forfeiture. He is a lifelong Alaskan and is married with four children.
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