COLUMBUS – Ohio prosecutors are concerned that a proposed state forfeiture reform bill -- which would require a person to be convicted of a crime before police could seize cash or possessions -- would neuter their ability to stop major drug trafficking in the state.
Right now, law enforcement only needs evidence of a crime before they can claim ownership of belongings.
But Ohio Prosecuting Attorney’s Association Director John Murphy said asset forfeiture is a major tool in their attempts to disassemble state drug rings.
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“It takes the profit out of the process,” Murphy said. “If you take the profit out of the drug trade, the drug trade is going to collapse. We’re not under any illusion that we’re about to collapse the drug trade, but we’re having some affect by enforcing civil forfeiture in some cases where we can identify the proceeds.”
Murphy said that the level of proof that they need to achieve is already high enough, and that raising it higher would be a mistake. He and other state prosecutors testified against the bill this week.
Under current law, an accused drug trafficker doesn’t need to be convicted of that crime for the state to seize cash or, for example, the vehicle associated in the alleged crime. Prosecutors just need to prove that those assets could have been involved in a crime.
Assistant Hamilton County Prosecuting Attorney Mark Tierney said he opposes the bill on the grounds that it mixes civil and criminal proceedings, a move that prosecuting and defense attorneys may find unethical or impractical.
“The way they have the legislation drafted, it makes it very difficult, if not impossible, to separate those two,” Tierney said. “If we were at trial, the jury would have to deal with two different standards of proof, two different categories of evidence that don’t necessarily or rarely have anything to do with one another.”
Tierney said that the legislature is welcome to reform civil forfeiture, but that it likely won’t make a huge impact on actual cases of misuse, as most drug cases that involve forfeiture usually include a conviction, at least in Hamilton County.
Proponents of the bill say there are measures meant to protect cases of misuse that still allow for major drug criminals to have their illegally-gained proceeds confiscated.
Rep. Robert McColey, R-Napoleon, co-sponsor of the bill, said that it is solely meant to protect the innocent.
“It violates basic presumptions that we have in our society,” McColey said. “The fact that we are innocent until proven guilty. If we are willing to punish individuals on the basis of a crime without proving they're guilty beyond a reasonable doubt, that’s an affront to one of our most basic principals of criminal justice.”
McColey said that he understands the concerns that state prosecutors have about drug trafficking, especially in cases where a conviction is not possible, such as when the alleged criminal has died or fled the jurisdiction.
But he said that he doesn’t think these cases are all that common.
Another proponent, Greg Lawson from the Buckeye Institute, recalled the case of Charles Clarke, who was detained at the Cincinnati/Northern Kentucky Airport, where police seized $11,000 in cash. He was never charged with a crime but the money remains in police custody.
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Lawson said that provisions in the bill would prevent the government from targeting people like Clarke.
Murphy said that he doesn’t see it that way, and that the process for seizing possessions is difficult enough as it is, and they protect the rights of individuals.
“The statute is very clear; it is full of due process protections, not only for the property owner but also for third-persons who might have a claim in the property as well,” Murphy said. “We have to satisfy the court that it’s been used in criminal activity, notify the persons who might have a claim on the property and they get full due process protections through that court.”
Ben Postlethwait is a fellow in the E.W. Scripps School of Journalism Statehouse News Bureau. You can reach him via email or follow him on Twitter @BCPostlethwait
