AFP Foundation-South Carolina highlights report on civil asset forfeiture reform in the Palmetto State

AFP Foundation highlights civil rights report on civil asset forfeiture reform in the Palmetto State

Mar 17, 2023 by Thomas Kimbrell

Last week, the Greenville News, Spartanburg Herald-Journal, and Bluffton Today published an op-ed authored by AFP-Foundation-South Carolina State Director Candace Carroll and me about the harm caused by civil asset forfeiture in South Carolina. The article highlights a recent report from the South Carolina Advisory Committee to the U.S. Civil Rights Commission.

“The report’s findings are damning. More than half of all seizures made between 2014 and 2016 had a value of $1,000 or less. Law enforcement agencies are not using civil asset forfeiture to disrupt large criminal enterprises as it was intended,” we wrote.

The advisory committee’s report comes in the wake of a South Carolina Supreme Court ruling upholding the constitutionality of the state’s civil asset forfeiture laws.

“Last year, the South Carolina Supreme Court found forfeiture laws are not ‘facially’ unconstitutional and named the General Assembly responsible for forfeiture reform. The civil rights commission report shows that law enforcement commonly confiscates people’s property in violation of their constitutionally protected rights and makes clear forfeiture reform is needed,” we argued.

The full text of the op-ed is reprinted below.

Lawmakers must reform civil asset forfeiture in South Carolina
By Candace Carroll and Thomas Kimbrell

In the last two decades, the State of South Carolina confiscated over $200 million in money and property from people in our state through a process called civil asset forfeiture. This process allows law enforcement agencies to seize and keep people’s money and property if the agencies allege it is connected to criminal activity—even if the owner is never charged with or convicted of a crime.

Last September, the South Carolina Supreme Court upheld the constitutionality of South Carolina’s civil asset forfeiture laws but noted that legislative change “might be a good thing.” Its opinion reversed the lower court, which had found that civil asset forfeiture violates due process and constitutional prohibitions on excessive fines. The Supreme Court also noted that if the state legislature believes the forfeiture law should be amended, they have the power to do so.

The case garnered much attention from the media, political organizations, policymakers, and community members. In December, to much less fanfare, the South Carolina Advisory Committee to the U.S. Commission on Civil Rights released a report on civil asset forfeiture. The report concludes South Carolina’s forfeiture regime “lacks limitations to avoid abuse, provide for oversight of seizing authorities, and protect the federal and state constitutional rights of due process.”

The report’s findings are damning. More than half of all seizures made between 2014 and 2016 had a value of $1,000 or less. Law enforcement agencies are not using civil asset forfeiture to disrupt large criminal enterprises as it was intended.

The committee received testimony that local law enforcement agencies annex portions of interstates to seize motorists’ assets during traffic stops. The committee also recounted the story of Isiah Kinloch, who called the police after a home invasion. The police searched his home, and after finding cash and a small amount of marijuana, they took his money. In one day, Isiah had his property taken by a criminal and the police.

South Carolina currently allows law enforcement to keep and spend the proceeds from forfeiture. This arrangement creates a compelling profit incentive for law enforcement agencies to seize people’s money and property. Additionally, there are few reporting requirements and little oversight. One county sheriff used forfeiture funds to purchase bicycle equipment, window tinting, baseball equipment, electronics, and clothes.

According to Greenville News’ investigative reporting, nearly 40% of people whose property was seized were never convicted of a crime. Even for innocent owners, though, recovering their property can be exceedingly difficult as South Carolina does not require a conviction for forfeiture.

In many cases, the cost of recovering seized property is greater than the value of the property seized. The Institute for Justice estimates the average cost to hire an attorney to fight a simple state forfeiture case is $3,000—more than triple the median seizure value.

The advisory committee recommends moving seizure proceedings to criminal court and requiring a conviction for forfeiture. The committee also recommends limiting forfeiture amounts to be proportional to the crime and reimbursing prevailing property owners the costs of recovering their property in court.

Other states have taken similar measures to curb civil asset forfeiture misuse. Kansas passed a comprehensive transparency law requiring law enforcement to report extensive data on all seizures, which is available online. New Mexico passed laws to end civil forfeiture, redirect all criminal forfeiture proceeds to the state’s general fund, and place restrictions on the federal forfeiture loophole.

Last year, the South Carolina Supreme Court found forfeiture laws are not “facially” unconstitutional and named the General Assembly responsible for forfeiture reform. The civil rights commission report shows that law enforcement commonly confiscates people’s property in violation of their constitutionally protected rights and makes clear forfeiture reform is needed.

Candace Carroll is the State Director for Americans for Prosperity Foundation–South Carolina. Thomas Kimbrell is an analyst at Americans for Prosperity Foundation.