New Hampshire Considers Major Forfeiture Reform

The New Hampshire state legislature’s House Committee on Criminal Justice and Public Safety is considering a significant change to the Granite State’s forfeiture laws: a change from civil forfeiture to criminal forfeiture. Below is a snippet from my recent testimony that explains how this proposed change would make life better for property owners in New Hampshire.

There is a fundamental tension between the government’s use of civil forfeiture and the property rights of its citizens. Civil forfeiture allows police officers to seize property, and that seizure only requires probable cause to believe that the property is related to crime; prosecutors then can shift the ownership of the property to the government through litigation in civil court, even if the property owner never faced criminal conviction or even criminal charges. The danger that civil forfeiture poses to property rights and due process raises significant questions about forfeiture fairness.

The median size of a cash seizure in America today is around a few hundred dollars to a little over a thousand dollars. (Medians vary by state.) Revenues from New Hampshire forfeitures average roughly $1.3 million yearly. The extraordinarily high rate of default judgments in these matters—around 80% of the owners of seized property never show up in court to contest the seizure—suggests barriers to access to justice. There are three substantial concerns about fairness that arise here.

First, property owners face a one-two punch: They lose possession of their property through seizure, then they discover that they’ll have to pay for their own representation in order to recover it in civil court. When they discover that they must bear litigation costs that are larger than the value of the property seized from them in order to win, and when they consider the odds that they might fail, they often give up—in other words, there are many instances of seizure and forfeiture in which no rational litigant would pursue recovery.

Second, many Americans know that proof of criminal liability requires the showing of guilt beyond a reasonable doubt. Indeed, the heavy burden that prosecutors shoulder is often understood as a device that furthers important moral values in the criminal justice system—more precisely, the requirement of proof beyond a reasonable doubt is seen as protecting innocent parties who for one reason or another become ensnared in the criminal justice system. In contrast, the low standard of proof (typically “more likely than not,” or greater than 50%) with which wrongdoing is proven in civil court—even though that proof is the trigger for what appears to be punishment for criminal acts—strikes many as fundamentally unfair.

Third, the nature of seizure and forfeiture as it is practiced today is pockmarked with evidence that revenue concerns drive the behavior of law enforcement officers and other government agents—thus distracting them from focusing on public safety and crime control. Forcing law enforcement officers to serve as their own revenue collectors creates troublesome pressures and incentives that are likely to distract them from their central mission.

In 2016, New Hampshire legislators passed SB 522 into law; that measure was an attempt to address some of the problems described above. SB 522 temporarily suspended civil forfeiture litigation by delaying it until after criminal prosecution occurred. But this change in litigation timing was a flawed solution. The policy of SB 522 still requires multiple litigation forums of litigation, which translates to more court procedures and prohibitive litigation expenses borne by property owners. Furthermore, because those owners are still likely to default in civil court due to litigation expenses, SB 522 still leaves property owners without the benefit of the higher standard of proof that is enjoyed by criminal defendants. I would add that New Hampshire deserves credit for what it did two years later in enacting SB 498, which significantly improved the transparency requirements of the forfeiture process.

Amendment 2022-0264’s proposed changes to state law would transform civil forfeiture proceedings to criminal forfeiture proceedings. It will thereby give property owners the same kinds of procedural protections that are assigned to criminal defendants. This change would almost completely eliminate the failures of public policy that are described above. Although there are other improvements to the forfeiture process that New Hampshire might also make (such as directing all forfeiture proceeds to the state’s general fund, which would allow the General Court to include seized funds in its budget deliberations), substituting criminal forfeiture for civil forfeiture would be a giant step forward for fairness. Four states now rely on criminal forfeiture proceedings (Nebraska, North Carolina, New Mexico, and neighboring Maine), and the General Court can protect the rights of the Granite State’s property owners by making New Hampshire the fifth state to enact these reforms.