For those New Mexicans who believe in bipartisan government, reaching across the aisle and the political spectrum--there is good news. The New Mexico legislature has just unanimously passed HB 560, without a single dissenting vote in either house. HB 560 revises the procedure involved in the forfeiting of citizens’ assets by government agencies, a practice referred to as “asset forfeiture.”
Every year, federal and state law enforcement agents seize billions of dollars during traffic stops, simply by alleging the money is connected to some illegal activity. Under federal and New Mexico’s laws, these agencies are entitled to keep most (and sometimes all) of the money and property, even if the property owner is never convicted and, in some cases, never charged with a crime.
This practice is so pervasive that the Institute for Justice deems it “policing for profit.” This refers to the fact that some law enforcement agencies pursue assets based on their value to their departments’ budgets as opposed to the property owners’ wrongful conduct.
Why would law enforcement agencies, whose mission is to protect citizens and their property engage in forfeiture? That question was candidly answered last November by the City Attorney from Las Cruces who said that forfeiture could be a “gold mine” for city law enforcement agencies. “We could be czars. We could own the city. We could be in the real estate business” he stated further noting that the Las Cruces law enforcement agency collected about $1 million from residents through forfeiture since 2006. And these funds that are forfeited go directly into the law enforcement agencies coffers outside of the appropriations process and legislative oversight.
HB 560 will eliminate the potential for this practice in New Mexico. But don’t be fooled; this bill is still tough on crime and will take the profits out of serious crime. The significant criminal forfeiture reforms provided by HB 560 give our prosecutors new and improved tools and procedures to combat drug trafficking and racketeering. The new law also tracks many federal criminal law rules and terminology, making it easier to interact with federal authorities in interstate and international cases.
HB 560 also ensures that the constitutional rights of innocent citizens--spouses, lien holders, banks, and other innocent parties--are now safeguarded. This law will not affect or impair the ability of our Department of Public Safety or other law enforcement agencies to seize property, contraband, or abandoned property. But, it does provide that before such property is forfeited, that the owner must be convicted of a crime or enter into a plea agreement admitting to a crime and the forfeited property was somehow involved in the commission of that crime.
Taxpayers also will like HB 560 because it includes proper legislative oversight and accountability. All proceeds from future forfeitures will be deposited in the state treasury subject to legislative appropriation and oversight, rather than being retained by individual police agencies. This eliminates law enforcement’s incentive to pursue primarily assets as opposed to criminals. By limiting asset forfeiture to situations where a person has been convicted of a crime, the provisions of HB 560 will ensure that there can never be any hint of self-interest or impropriety.
When first instituted, asset forfeiture seemed like a good idea. Why should those committing crimes be allowed to keep the conveyances that enabled them to commit those crimes? As a young New Mexico legislator in the early 1980s, I was involved in legislation enabling government agencies to use forfeiture. And, those old enough will member my campaign theme when running for the office of Attorney General--“Stratton vs. Crime.” I still am against crime and a strong advocate for law enforcement. But there is no bigger miscarriage of justice than when those who are charged to protect us abuse that duty and cause harm to innocent and sometimes helpless citizens. It is time the potential for this abuse is stopped in New Mexico. I am proud to support HB 560.
Hal Stratton was Attorney General of New Mexico from 1987 through 1990 and a member of the New Mexico House of Representatives from 1979 through 1986.