Assembly Democratic Bill Package Designed to Create Fairness and Transparency in Civil Asset Forfeiture Cases Clears Assembly Panel

(TRENTON) – Seeking to protect citizens from unfair and unclear civil asset forfeiture practices, Assembly Democrats Lisa Swain, Nicholas Chiaravalloti, Nancy Pinkin and Angela McKnight sponsored a legislative package revising certain state civil forfeiture practices, increasing transparency in these practices and studying how those who lack legal representation are affected. The bills cleared the Assembly Law and Public Safety Committee Thursday.

The first bill (A-4969), sponsored by Swain, Chiaravalloti and Pinkin, would establish the “Fairness in Asset Forfeiture Proceedings Task Force” to study the nature, extent and consequences of the lack of legal representation of certain New Jersey residents in asset forfeiture proceedings.

“It is important that we understand how legal representation, and its relation to socioeconomic status, affects the outcome of civil asset forfeiture cases,” said Swain (D-Bergen, Passaic). “We must ensure that all our citizens in these instances are being treated fairly, and learn how to better assist those who lack the means for adequate legal representation.”

According to a recent American Civil Liberties Union-New Jersey (ACLU) report, between January and June of 2016, there were approximately 1,860 civil forfeiture cases initiated by county prosecutors in New Jersey, mostly in low-income areas. These cases involved more than $5.5 million, 234 cars and a home. Of these 1,860 cases, the defendants in only 50 of them appeared in court to oppose the forfeiture.

The ACLU report further notes that public defenders are prohibited from representing defendants in civil matters and most legal services providers in New Jersey do not offer assistance to defendants in civil asset forfeiture matters.

“This task force is meant for us to learn how individuals lacking legal representation in civil asset forfeiture cases are affected differently from those individuals who are able to employ counsel,” said Pinkin (D-Middlesex). “Asset forfeiture can turn someone’s life completely upside down, potentially losing a devastating amount of property, and we must do our best to protect all citizens equally.”

The second bill (A-4970), sponsored by Chiaravalloti, revises procedures for certain asset forfeiture proceedings and requires criminal conviction for forfeiture of certain seized property.

“It is not fair if someone is deemed innocent of committing a crime, yet their property said to be related to that crime is taken away from them, never to be returned,” said Chiaravalloti (D-Hudson). “If there was no foul play, it is only right that these individuals have their property returned to them.”

Under current law, a prosecution involving seized property terminates without a conviction does not preclude forfeiture proceedings against the property.

Under this bill, seized property, other than prima facie contraband, or something assumed to be contraband until proven otherwise, is not to be subject to forfeiture unless a prosecution involving: (1) property in the form of cash, negotiable instruments, or other cash equivalents with a value of $1,000 or less; or (2) property, other than cash, negotiable instruments, or cash equivalent, valued at $25,000 or less terminates with a conviction.

A criminal conviction is not required for other seized property, however, consistent with current law, a conviction creates a rebuttable presumption that the property was used in furtherance of unlawful activity.

Under current law, the burden is placed on the owner of the property, rather than the state, to establish, by a preponderance of evidence, that the owner was not involved or aware of the unlawful activity. This bill would amend this to place the burden on the state to establish, by clear and convincing evidence, that the owner of the property was involved in or aware of the unlawful activity relating to their property.

The third piece of legislation (AR-222), sponsored by McKnight, Chiaravalloti and Pinkin, urges the New Jersey Supreme Court to study the reasonableness of lowering court fees in civil asset forfeiture cases.

“Oftentimes, court filing fees cost more than the money seized by law enforcement, and, as a result, many people do no defend their rights civil action to seek back their seized property,” said McKnight (D-Hudson). “It is important to determine if this is the best practice to put in place to encourage our residents to pursue their civil rights.”

Additionally, McKnight is a sponsor of (A-3442), which establishes asset forfeiture reporting and transparency requirements.

The legislation now heads to the Speaker for further consideration.