Delaware legislation introduced to protect property rights

Legislators in Delaware have introduced a bill that would prevent law enforcement from seizing a person’s property if he or she has not yet been arrested or convicted of a crime.

The bi-partisan legislation introduced by Sen. Colin Bonini, R-Dover, Sen. Bryan Townsend, D-Newark, and Rep. Paul Baumbach, D-Newark, aims to protect property rights by eliminating the state’s civil asset forfeiture system and replacing it with criminal forfeiture.

“In America, the government should not be allowed to take your property unless they can prove you did something wrong,” Bonini said in a statement.

In their report “Policing for Profit,” the Institute for Justice issued Delaware a D-rating for its civil forfeiture laws, claiming the state has some of the worst in the country.  The report states Delaware’s law automatically assumes seized property is forfeitable unless an owner can prove by a preponderance of the evidence it is not.

“I do not believe the government should have the power to take property form people without proving they have done something wrong,” said Kathleen MacRae, executive director of the American Civil Liberties Union of Delaware.

“I think it undermines two basic values we have—which is right to private property and the right to due process.”

While the law is structured to cobble drug dealers and syndicated crime operations, MacRae said the law also has been used to take small amounts of money from people on the streets. She said studies have shown the average seizure in Philadelphia is $75.

Law enforcement can seize a person’s cash, car, home or other assets, sell it and use it to fund agency budgets—even before charging the person with a crime.

“Allowing law enforcement to seize and keep property without a criminal conviction, or even an arrest, undermines the trust between the police and the community,” Townsend said in a statement.  

“Such trust is essential to the safety of communities and police officers alike, and Delaware’s forfeiture law should be reformed to increase transparency and build as much faith as possible in the people on the front lines of protecting the Delaware community.”

They say law enforcement has no statutory obligation to publicly account for its forfeiture activity because the Special Law Enforcement Assistance Fund, which distributes seized assets to police departments, is not considered a public entity and is not subject to Delaware’s Freedom of Information Act.

“The Delaware system is shrouded in secrecy,” MacRae said. “There is no system of reporting, so we do not know which police departments are seizing assets from what home in what amount. We also don’t know how the money is being spent.”  

Senate Bill 222 would require a criminal conviction before the state could retain an individual’s assets. Bill sponsors say it would standardize forfeitures across all crimes, simplify procedures and reduce incentives that “distort policing priorities.”

MacRae said the legislation provides due process to allow the individual the opportunity to argue his assets were not related to criminal activity. She said it also protects second and third parties who might do business with someone involved in criminal activity, but didn’t know what was going on.

The legislation maintains law enforcement’s authority to seize property associated with crime and to charge and prosecute those who break the law.

While the legislation doesn’t prevent law enforcement from seizing assets, it does ensure abuse in the system is not occurring or is reduced. The courts also will become involved in the process, which means it will be public information.

“This bill takes a comprehensive approach to reforming our asset forfeiture process–ensuring due process and transparency,” Baumbach said in a statement.

“With these improvements, the asset forfeiture program can better achieve its goal of providing law enforcement with a system to fairly deter criminal activity in Delaware by reducing its economic incentives.”