New Jersey may make it harder for police to keep property they take from you

Ashley Balcerzak | NorthJersey

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New Jersey wants to make it more difficult for police and prosecutors to keep cash and property seized from people they suspect used the property in a crime.

Some experts, however, don't think the new legislation will fully solve the problem, amid a system that creates a perverse incentive for police to collect proceeds to fund their departments. Sponsors, meanwhile, say they are open to suggestions and that the bill will improve upon New Jersey's status quo.

The Legislature is considering a bill that says a person would have to be convicted of a crime before prosecutors can take ownership of property they say is tied to that crime, if it’s less than $1,000 in cash or property worth less than $10,000. The bill does not apply to illegally obtained firearms and gambling devices, like a slot machine, certain drugs and untaxed tobacco products, among others.

A Senate committee voted Monday to advance the bill. Members previously passed an Assembly version of the bill, but they will have to approve an amended version, which lowered the property threshold from $25,000 to $10,000 and changed the burden of proof needed to show the property is connected to a crime.

Here's how the system, called civil asset forfeiture, works right now in New Jersey: A person is pulled over on the highway. Police find $500 in cash in the front seat and suspect the driver is trafficking drugs, and that the money is the payment for drugs.

The driver may be criminally charged, and the $500 in cash goes into its own civil process, in which the state charges the cash — not the owner of the money or property — with being involved in a crime. The case would be called something like New Jersey v. $500 in cash.

The criminal and civil cases are separate, and the driver does not have to be convicted of drug trafficking for the state to keep his $500. New Jersey just has to show by a "preponderance of the evidence," or more likely than not, that the money was tied to a crime. And that's a lower legal threshold for winning a case than it would be to win a criminal conviction.

In a majority of cases, people don't show up in court to try to get their things back, because hiring a lawyer costs more than their property and public defenders are not provided in these civil cases.

What's more, the seized cash and property then goes back into the coffers of the local law enforcement agencies and Attorney General's Office, creating what some critics say is a perverse incentive for police to seize more property.

"This incentive makes you wonder: Is law enforcement concerned with the epidemic of opioids, and are they looking to seize drugs on the highway, or instead are they focusing on the proceeds, or cash received after the drugs have already been sold into communities?" said Lee McGrath, senior legislative counsel for the Institute for Justice, a libertarian group that tracks and lobbies on asset forfeiture bills across the country.

Across the country, some of the most powerful opponents to these types of bills are law enforcement groups, which argue that it's a solution looking for a problem, though no group testified against the bill in a Senate committee Monday. The County Prosecutors Association of the State of New Jersey and the New Jersey State Policemen's Benevolent Association did not respond to requests for comment.

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However, the bill's Senate sponsor is Sen. Joe Cryan, D-Union, who was an undersheriff and sheriff for close to two decades.

"This process is called the justice system," Cryan said. "There's no justice in keeping someone's property who isn't convicted of a crime."

The bill would also place the burden on the prosecutor, rather than the owner, of proving the guilt by "a preponderance of the evidence."

"I wholeheartedly endorse the effort," said Sen. Declan O'Scanlon, R-Monmouth. "This is something that does unify the left and the right, which I like to see those issues. New Jersey has been at the bottom of the barrel when it comes to asset forfeiture."

But the bill New Jersey is considering may not be the right approach, said McGrath, with the Institute for Justice.

The legislation would still keep the person and his property in two different court systems, McGrath said, so people will remain unwilling to go through the civil system to get their property back because the process is too expensive. States should get rid of civil asset forfeiture altogether, he said, as Nebraska, New Mexico and North Carolina have done, and tie the property directly to the criminal case.

"If there's a better idea, we'll take a look at it," Cryan told the USA TODAY NETWORK New Jersey.

So far, 15 states require a criminal conviction before property can be taken in civil court, as in the bill New Jersey is weighing, according to a count by the Institute for Justice, which includes Northeastern states such as Vermont, New Hampshire and Connecticut.

It's difficult to know the scope of how much New Jersey brings in a year from forfeited property, which also makes it difficult to understand the fiscal impact of the bill.

New Jersey doesn't have a statutory requirement for agencies to report forfeitures, but the Division of Criminal Justice asks county prosecutors and local agencies to send that information to the attorney general every quarter.

Here's what we do know from groups that filed public records requests: From 2009 to 2013, county district attorneys reported collecting more than $72 million worth of property allegedly tied to crimes, according to the Institute for Justice. And New Jersey counties seized $5.5 million worth of property between January and June 2016, according to a report by the American Civil Liberties Union of New Jersey.

Since 2014, 23 states, including Massachusetts, New York and Pennsylvania, have passed new transparency and reporting requirements for asset forfeitures, according to Institute for Justice numbers.

The New Jersey Legislature is also scheduled to consider a bill Thursday to create a public tracking system of forfeitures, a transparency bill former Gov. Chris Christie vetoed in February 2017. Christie said the policy would "hamper ongoing law enforcement operations."

Ashley Balcerzak is a reporter in the New Jersey Statehouse. For unlimited access to her work covering New Jersey’s legislature and political power structure, please subscribe or activate your digital account today.

Email: balcerzaka@northjersey.com Twitter: @abalcerzak