While a bill that would provide accountability to the public for law enforcement’s use of civil asset forfeiture has passed the state House of Representatives and been introduced into the Senate, a comprehensive bill to bring sweeping reform to the practice has stalled more than likely for the year.
The reform bill was prompted by TAKEN, an investigation by The Greenville News and Independent Mail that found law-enforcement agencies statewide collected more than $17 million over three years using state laws that allow police to take money and property without requiring a conviction or even an arrest.
The bill, heralded by a swath of bipartisan lawmakers, would have eliminated the use of civil forfeiture in most cases and replaced it with criminal forfeiture based on a conviction.
Legislators say the reform bill was a model, or form, bill that didn’t account for idiosyncrasies that exist within South Carolina law. So instead of moving ahead with that bill, H 3968, House Speaker Jay Lucas asked the House to form a study committee to draft legislation to account for the many ways civil forfeiture is currently used in the state, said Rep. Alan Clemmons, R-Myrtle Beach, who has led the reform efforts.
Civil asset forfeiture is used by law enforcement to seize the assets of a person if they believe the cash or property was profit from or helped facilitate the commission of a crime. It’s most commonly used as a tool to fight drug trafficking or to seize cash or equipment from illegal gambling operations.
But forfeiture can also be used to seize the vehicle of a driver after a fourth conviction for driving under the influence, for instances where a person abandons their money and for other reasons found in various sections of the state law.
The TAKEN investigation revealed that law enforcement had used forfeiture more than 3,200 times in three years in South Carolina, seizing more than $17 million from people in addition to cars, televisions and even houses. In nearly 800 cases no criminal charges were filed, and in nearly 800 cases where a criminal charge was filed, there was no conviction.
In the wake of TAKEN, legislators eager to change the law quickly didn’t realize the issues that trying to fold the civil forfeiture reform into existing law would create, Clemmons said. There were disconnects that weren’t caught in initial reviews by legal staff and research across the breadth of state law impacts that would have created more issues if changed as stated in the bill, he said
Research “found page after page of existing civil forfeiture laws, and we had to try to fix it all,” he said.
Rep. Gary Clary, R-Clemson, a retired circuit judge who co-sponsored reform legislation and spoke of the need for reform at a Statehouse press conference in February, will lead the study committee tasked with developing a bill that will work for South Carolina.
“To a person, I think everyone wants to reform civil asset forfeiture,” Clary said.
Trying to shoehorn a model bill into South Carolina law didn’t work
More than 100 House members, including the entire Greenville County delegation, signed on to co-sponsor forfeiture reform. The problem arose with the bill they were presented with, Clary said.
It was model legislation produced by the conservative legislative group American Legislative Exchange Council and similar to a law in New Mexico, which abolished civil forfeiture and is considered the gold standard for statewide reform according to the Institute for Justice, an advocacy law firm that’s pushed for civil forfeiture reform.
A recent joint investigation by USA TODAY and the Arizona Republic found that model bills are often pushed from special-interest groups to state legislators rather than lawmakers drafting their own bills to fix issues within their states. The investigation found 10,000 bills almost entirely copied from model legislation were introduced nationwide in the past eight years, and more than 2,100 of those bills were signed into law.
The civil forfeiture reform legislation is one example.
“Form bills don’t fit every state,” Clary said. “We wanted to make sure that when we put forward a bill that it is going to do the job that we intend for it to do.”
Clary, too, said he believed lawmakers rushed to introduce the reform bill before realizing how broadly reform would impact state law.
“Once we really started to analyze it, we realized that there were just too many unanswered questions about it and things that we realized were inconsistent with what we wanted to do in South Carolina,” he said.
Lee McGrath, an attorney with Institute for Justice, which wrote the model bill, said it has received the approval of both ALEC and the progressive State Innovation Exchange as well as the National Association of Criminal Defense League. It’s a good model but just a model, he said. Every bill must be customized to fit each state, he said.
The South Carolina House’s bipartisan study committee will begin meeting soon after the Easter recess, and work has already started to analyze current law and how it should be reformed, Clary said.
Clemmons remained hopeful the reform bill could be advanced with the time left in this spring, but he said its likelihood dimmed with each passing day.
With the deadline passed April 10 for legislation to cross over from one chamber to the other with a majority vote rather than a two-thirds vote, and with scant time remaining in the spring session, the reform bill will likely be waiting and ready for the 2020 session, which begins in January, he said.
“At the end of the day, the House is committed to reforming civil asset forfeiture, but we don’t want to create a catastrophe or a bigger mess than currently exists,” he said.
Bill to create central database of seizures and forfeiture may proceed
A second bill that Clemmons championed would create a central database, likely housed on the State Law Enforcement Division website, for the public to have easy access to every instance law enforcement seize property or cash and information about civil forfeiture cases.
That bill passed the House on third reading, 86-17, and has been introduced into the Senate and referred to the Senate Judiciary Committee.
As legislators began to realize the comprehensive reform bill wouldn’t move forward, several tried to amend the database bill to abolish civil forfeiture altogether. Clemmons introduced multiple amendments, and Rep. Todd Rutherford, D-Columbia, the House Minority Leader, succeeded in passing an amendment that would have required law enforcement to file a criminal charge in order to seize property.
Rep. Tommy Pope, R-York, voted in favor of that amendment, then moved to reconsider, which nullified the vote.
Clemmons said the House had received “strong signals” from the Senate that its Judiciary committee wouldn’t take up the database bill if it included amendments trying to shoehorn reform into the bill.
Simply passing a law to require a criminal charge wouldn’t have fixed South Carolina’s forfeiture system, said McGrath.
“It is an insufficient process to just require a charge to be made,” he said. “South Carolinians deserve the criminal forfeiture process which requires a charge and criminal conviction before the same court hears the same question of whether vehicles and cash are the instruments and proceeds of a crime.”
So with the bill reverted back to its original language, it passed. That database, in itself, would mark a major victory for accountability, Clemmons said.
“Even without reform, the database reporting bill will hold law enforcement accountable,” he said.
Law enforcement would have to report to a central database when property was seized, from who, the reason, any corresponding criminal charges, whether the case was handed over to federal authorities, and the timing and resolution of a forfeiture case, among other information.
“The reporting bill is an essential piece of legislation because it will produce data for policymakers that will confirm The Greenville News investigation that forfeiture abuse is a problem in South Carolina,” McGrath said.
Multiple states have created similar databases, including Minnesota, which created one in 2000 and is using data collected through that database as lawmakers pursue forfeiture reform this year, McGrath said.
Clary said it’s just a matter of getting reform correct. No one was intentionally stalling the reform legislation this year, he said.
“There’s certainly a misconception that people were trying to interfere with or kill this bill,” Clary said. “I haven’t talked to a person that that is their intention. I think that we all know that we’ve got a problem with civil asset forfeiture in South Carolina, and we truly want to fix it.”