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Maine Now Requires Criminal Conviction Before Property May Be Forfeited

by Douglas Ankney

Maine passed LD 1521 without the governor’s signature to become the fourth state in the nation to abolish civil asset forfeiture, requiring instead a criminal conviction before property may be forfeited. The law took effect July 13, 2021. “It’s a very simple concept; you don’t lose your property unless you used it in the commission of a crime, or knowingly allowed someone else to use it in the commission of a crime,” said Rep. Billy Bob Faulkingham who sponsored the bill. While the law still permits forfeiture without a conviction in a few narrow circumstances—such as the owner’s death or deportation—the law “ends an immense injustice and will ensure that only convicted criminals—and not innocent Mainers—lose their property to forfeiture,” said Lee McGrath, Institute for Justice Senior Legislative Counsel.

Civil asset forfeiture has become known as “policing for profit” and had run amok in Maine. It allows forfeiture of property, without a criminal conviction. Oftentimes property was seized based on mere allegations the property was used in a criminal offense—which the property owner then had to disprove in order to have the property returned.

Prior to the passage of LD 1521, a court could decide to send the proceeds from any forfeiture to any county, municipal, or state agency that made a “substantial contribution to the investigation or prosecution.” Proceeds sent counties or municipalities required votes of local legislative bodies to approve transferring the proceeds. Portland’s city council voted to approve every forfeiture case with which it was presented—giving nearly $100,000 in forfeiture funding to the Portland Police Department from 2015 through 2020. A 2020 report from the Institute for Justice revealed Maine agencies forfeited more than $3 million between 2009 and 2019.

But that amount pales in comparison to the $10.2 million police and prosecutors generated over the same time period through “equitable sharing.” Seen as a loophole to state law, equitable sharing is a federal program that allows state and local agencies to “partner” with a federal agency like the DEA or ICE and then forfeit property under federal law, keeping 80% of the proceeds. Fortunately, LD 1521 closed this loophole by banning Maine law enforcement from participating in equitable sharing except for cases involving more than $100,000 in cash. (Of the 130 equitable-sharing cases in Maine during the past five years, only two involved assets over $100,000.) Maine has now joined seven other states and the District of Columbia in limiting equitable sharing.

However, LD 1521 does not eliminate the transfer system under state law. But it does require records of forfeited property, along with their transfer, to be filed with the Department of Public Safety, which in turn must make the reports publicly accessible online.

New Mexico, Nebraska, and North Carolina are the other three states that abolished civil forfeiture. In April 2021, Arizona became the 16th state to require a criminal conviction before police can forfeit property under its civil asset forfeiture laws, unlike Maine, New Mexico, Nebraska, and North Carolina which abolished civil forfeiture nearly in its entirety. 

Sources: forbes.com, reason.com

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