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Our Turn: Fight opioid crisis, but don’t give up civil liberties



For the Monitor
Thursday, April 28, 2016

Bad incentives make for bad law enforcement policies. Nowhere is this more clearly typified than civil forfeiture, a law enforcement tool that threatens innocent New Hampshire property owners through “policing for profit.” Police can seize – and keep – cars, cash, and homes from innocent citizens – even when they are not accused of, much less convicted of, a crime.

Civil forfeiture strips innocent property owners of their constitutional rights, such as when criminal suspects use an innocent family member’s property to commit a crime. Spouses, parents or neighbors must then go to court – often with no lawyer since civil forfeiture is technically a civil proceeding – and carry the burden of proving that they did not know about the suspect’s use of their property.

Where does this cash go once the property gets off the auction block? As much as 90 percent returns to New Hampshire law enforcement, creating a perverse incentive that puts seizing property above stopping criminals or contraband. Police departments become self-financing agencies with no accountability that results from a standard budgetary process. This has been well-documented by the Institute for Justice in its second edition of Policing for Profit, which gives New Hampshire a D-minus for its civil forfeiture laws.

Fortunately, HB 636, which was recently passed by the New Hampshire House of Representatives and approved by the state Senate Judiciary Committee, would reform this system. This landmark civil liberties bill is thanks to bipartisan collaboration between Republican Reps. Dan McGuire and Mike Sylvia and Democratic Rep. Paul Berch, among others.

First and foremost, the bill would redirect all forfeiture proceeds away from police coffers and toward the state’s general fund. This would end asset forfeiture’s perverse profit incentive, and make New Hampshire the eighth state to ban policing for profit through forfeiture.

Second, HB 636 would also generally require a criminal conviction (or plea deal) before the government could forfeit property.

Finally, the bill would better protect due process by shifting the burden of proof onto the state – and not innocent property owners.

Unfortunately, on March 23, Gov. Maggie Hassan threatened to veto the bill, saying that “the heroin and opioid crisis is the most pressing public health and safety challenge facing New Hampshire.”

While there is no doubt that opioid addiction is a serious public health concern, this should in no way hinder legislative efforts to reform civil forfeiture and affirm the legislative branch’s authority as the only entity constitutionally permitted to fund law enforcement.

The Legislature has already increased law enforcement’s resources to address the opiate-related deaths. The biennium budget that started July 1, 2015, spends 75 percent more in the drug area for prevention, treatment and enforcement than did the previous biennium budget, according to recent testimony by Rep. McGuire.

Furthermore, there is now legislation under consideration by the House Finance Committee that would create a dedicated fund for grants to address opioid use. SB 485 appropriates another $1.5 million to law enforcement to fight opioid addiction. In keeping with the constitutional prerogatives of the Legislature, the fund would be budgeted and not filled using forfeiture money. This bill would provide local law enforcement with funding that emphasizes disrupting the flow of illicit drugs being transported into and through the state for eventual sale and illegal use.

The efforts of New Hampshire elected officials to simultaneously address the opioid crisis and end policing for profit are admirable, pragmatic, and – above all – in keeping with the separation of powers.

Lawmakers should pass HB 636. Gov. Hassan should reverse course and sign this bill into law. It is in times of crisis when we must reaffirm our commitment to civil liberties.

(Robert Peccola is an attorney with the Institute for Justice in Arlington, Va. Gilles Bissonnette is the legal director of the ACLU of New Hampshire.)