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2002 FINAL STATELEGISLATIVE PROGRAM CONTROVERSIAL ISSUE ISSUE: FORFEITURE SUMMARY: Developments in the United States Supreme Court, the Maryland Court of Appeals and the Maryland General Assembly led the Maryland State Bar Association to call for a review of forfeiture statutes in 1994. Drug forfeiture laws were passed over two decades ago as a means of punishing and deterring illegal narcotics activity (Article 27, Section 299). Maryland also permits forfeiture of cash seized for illegal gambling activities (Article 27, Section 264) as well as many seizures of property that are established in common law. Bills to extend the forfeiture principles to cases involving solicitation of prostitutes have failed to pass the General Assembly in recent years. Greater attention was focused on forfeiture laws as a result of a U.S. Supreme Court decision (United States v. James Daniel Good Real Property, et. al.) which barred the government from seizing real estate linked to illegal drug activity unless it provided the owner with a hearing in court. Although the Court acknowledged that forfeiture laws were intended to be powerful instruments to enforce narcotics statutes, it criticized overzealous enforcement of the laws because innocent owners were deprived of their property in violation of the Due Process Clause of the Fifth Amendment. Two Maryland cases decided in early 1994 added greater uncertainty as to how the state forfeiture laws would be enforced. The Maryland Court of Special Appeals ruled that the owner of a seized vehicle could avoid forfeiture if the evidence showed he or she had no actual knowledge of the property's illegal use (1988 Jeep Cherokee v. City of Salisbury). Two months later the Court of Appeals held that when total circumstances justify the seizure of property in drug cases, the judicial branch may not conduct a review of the forfeiture decision. A minority of the Court agreed that while the law gives police broad discretion in cases involving forfeitures, their authority is not limitless, and the court is not powerless to correct an abuse of that discretion (State v. One 1988 Toyota Pick-up Truck). Defense lawyers cited these cases as evidence that the law gives authorities too much discretion over a defendant's property, that there is uneven enforcement and that in some situations the harshness of the penalty does not fit the crime. They called for legislation to clear up ambiguities in Maryland's statute and provide for greater judicial authority. In the 1990's there were more than 1000 seizures in the state worth millions of dollars in confiscated assets. In each successive year more property was seized. During this same period the recession and the anti-tax movement forced government officials to scramble for new sources of revenues. Opponents of the forfeiture laws feared that without proper controls, such as judicial review of seizures, the temptation to take cash, real property and motor vehicles from suspected drug dealers as a means of compensating for budget shortfalls would be too great. Legislation passed by the 1995 General Assembly allows courts limited authority to review forfeiture as a means of determining whether or not the seizures were in error or an abuse of discretion. Action in the United States Supreme Court in 1996 gave prosecutors a victory when the panel ruled that forfeiture did not violate the double jeopardy clause of the U.S. Constitution which forbids multiple punishment for the same crime. Since that decision, the adoption of "zero tolerance" policies in drug cases in some jurisdictions has resulted in an increase in forfeitures. At the federal level, the government has the power to seize personal property by merely showing "probable cause" that the property being confiscated was connected with the criminal act, and it’s up to owners to prove that the seizure was improper. Legislation has been introduced in Congress to change the law by shifting the burden of proof to the government to use a "preponderance of the evidence" standard that the property was used in connection with a crime. The American Bar Association supports asset forfeiture reform. In the 1998 session, a bill was filed that would have permitted forfeiture of motor vehicles if any occupant of that vehicle possessed illegal drugs. Several changes to the proposal that were recommended by the MSBA were adopted, including one striking the expanded power to forfeit. Under the new statute, a show cause order will not be required in applications for money or currency contraband forfeitures. Other changes include the establishment of a more equitable process for notification and bonding procedures to retrieve forfeited property, and an expanded role for the court in the process. The only forfeiture bill to pass in the 1999 session added the State to the list of eligible government entities to receive seized property, and clarified that the jurisdiction that initiated the investigation that resulted in the forfeiture would be the one to receive proceeds from the sale of the action. No additional forfeiture bills passed in 2000 or 2001. MSBA 2002 POSITION: Monitor all legislation concerning forfeitures to insure adequate judicial review and inclusion of due process provisions. SAMPLE LEGISLATION:
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