The burden of proof should be on the state

January 23, 2018

As the 149th General Assembly returns to session, you might want to pay attention to a bill (SB 60) that Sen. Colin Bonini introduced last April 5, to standardize civil asset forfeiture across all crimes and simplify procedures.

The bill's synopsis describes the problem: "Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today. Under civil forfeiture, police and prosecutors can seize your car or other property, sell it and use the proceeds to fund agency budgets - often without so much as charging you with a crime."

Over the last 30 years this confiscation policy has become widespread nationwide but is now being challenged and reformed in some states.

In an April 6, 2016 News Journal article, James Fisher reported that, "police have seized $5 million in assets and cash since 2012 under the state forfeiture laws, and a special committee of prosecutors and police officials that decides how the money is spent is exempt from the state's sunshine law."

Moreover, he says that, "Although police departments are supposed to tell the state auditor how they're spending money in that fund, there are no records of any such disclosures in recent years..."

Beyond the $5 million, the Institute for Justice ( reported that "Delaware is the 6th best state for federal forfeiture with over $7 million in Department of Justice equitable sharing proceeds from 2000-13 and another $1.3 million from the Treasury Department."

The Institute has given Delaware a D- in civil asset forfeiture seizures.

In a related story Jessica Masulli Reyes in the Washington Times reported, "To get back money or property, an individual must prove in civil court that it was legally acquired, usually by showing bank statements, gambling winnings or tax returns. Most people, however, do not challenge the forfeiture because the process can be long and difficult to navigate without a lawyer."

She added that, "a News Journal review of court records showed that in the last six months (2015) over 50 people have filed petitions for return of property. In total, they are seeking the return of $140,000 in cash, as well as other property, including a PS3 game console, a silver Cadillac DeVille, a handgun, a Vizio 70-inch television and a Samsung Galaxy cellphone."

"In one petition, a New Castle man is saying that over $1,000 seized from his home was not drug money (a claim police made based on the way the money was stacked), but instead, was money from his federal and state tax refunds."

"In another, a Dover man is saying that $2,600 seized from him were proceeds from a recent sale of...puppies."

"But few people get all of their property back. The majority settle with the state to get a portion, while agreeing to forfeit the rest in order to avoid a lengthy court battle and attorney fees, court records show."

To explain the background of civil asset forfeiture, Professor of Economics-George Mason Univ., Donald J. Boudreaux wrote that, "the original intent of civil forfeiture...was to punish only wrongdoers who are personally outside of the jurisdiction of the country's courts...Unable to convict faraway suspected criminals, civil forfeiture created the legal fiction that...inanimate properties are the wrongdoers...then "charged" at civil trial with wrongdoing. And when found liable...the properties were seized."

But today, he says, "civil asset forfeiture is used to seize properties of persons who are clearly within the jurisdiction of domestic courts. The legal fiction that the wrongdoers are inanimate properties is today used simply to save law-enforcement officials the trouble of having to win criminal convictions against flesh-and-blood wrongdoers before taking their properties. This convenience...encourages law-enforcement agencies to regard too many innocent property owners as suspected wrongdoers."

One notable defect in Sen. Bonini's bill, is that law enforcement is not prevented from impounding private property before conviction. Here's more from the bill's synopsis:

"This Act does not change the authority of law enforcement to seize property suspected of being associated with crime..." Note that the word "suspected" and not convicted is used.

They have to hold the property for possible return but only after the owner fights in court. It should be the reverse. The burden of proof should be on the state to prove their claim for confiscation.

Better yet, Delaware should adopt New Mexico's and Nebraska's recent reforms which ended the gestapo-like civil asset forfeiture altogether in favor of criminal forfeiture to avoid innocent people from getting ensnared unfairly.


Geary Foertsch lives in Rehoboth and writes from a libertarian perspective to promote economic liberty, non-cronyism free markets, small government and a non-intervention foreign policy. He can be contacted at


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