Even Nevada's law-abiders should fear renewed asset forfeiture efforts: Daniel Honchariw

To the indignation of civil libertarians across the country, U.S. Attorney General Jeff Sessions has announced that federal law enforcement will ramp up the controversial practice of civil asset forfeiture, including its related Equitable Sharing program.

“With care and professionalism, we plan to develop policies to increase forfeitures,” proclaimed Sessions at a recent law enforcement gathering in Minneapolis. “Adoptive forfeitures are appropriate as is sharing with our partners.”

This statement should sound the alarms for every Nevadan — even those living a crime-free lifestyle, as too often the people caught within the web of forfeiture aren’t criminals at all.

“Civil asset forfeiture” refers to the law enforcement practice of seizing a person’s property based merely on the suspicion that such property was connected to criminal activity. Historically, due process protections for the accused have lacked, and abuse under color of law has been rampant.

Fortunately, in 2015 Nevada’s legislators made measurable progress in reforming the activity. As enacted, Senate Bill 138 demands that law enforcement secure a criminal conviction in most, but not all, cases before initiating forfeiture proceedings. The same legislation compels law enforcement agencies to report to the state Attorney General’s office annually regarding the scope and frequency of their forfeiture activities.

Yet the feds’ recent policy shift — former AG Eric Holder dialed-back the program in 2015 — now threatens to undo the practical effects of those reforms. This is so because under the federal program of Equitable Sharing, local law enforcement can effectively skirt local due process requirements by working in tandem with federal agencies. In such circumstances, the local agency collects up to 80 percent of the forfeited proceeds, even absent a conviction against the alleged law-breaker. Perversely, this creates an incentive for local authorities to abuse the practice, a phenomenon dubbed “policing for profit.”

Other states, however, have passed legislation which explicitly prohibits local authorities from participating in Equitable Sharing. Pennsylvania, for example, recently passed a measure which reads, “State law enforcement authorities shall not refer seized property to a Federal agency seeking the adoption by the Federal agency of the seized property.”

There are compelling reasons for Nevada to replicate Pennsylvania’s new law. A recent NPRI study demonstrated the regressive nature of civil asset forfeiture; in 2016, two-thirds of all forfeiture cases within Las Vegas Metro’s jurisdiction occurred in Clark County’s poorest neighborhoods. Those who have their property seized have little practical recourse for contesting forfeiture proceedings, as the cost of pursuing formal litigation typically outweighs the value of the seized assets. Indeed, a staggering 56 percent of forfeiture cases concerned $1,000 or less.

Federal action now threatens Nevada’s recently passed, bipartisan reforms. The state’s lawmakers shouldn’t sit idle and watch it happen. Following Pennsylvania’s lead, they should instead protect Nevadans by prohibiting law enforcement’s participation in the Equitable Sharing program entirely.

Anything less would constitute a failure of the state’s elected officials to protect Nevadans from would-be thieves — notwithstanding AG Sessions’ renewed support for the practice.

Daniel Honchariw is a policy analyst with the Nevada Policy Research Institute, a free-market think tank.