- JACK DURA Bismarck Tribune
- Jan 30, 2019
Legislation to reform civil asset forfeiture in North Dakota drew a stream of strong and, at times, animated testimony on Wednesday in a lengthy hearing.
Rep. Rick Becker, R-Bismarck, introduced House Bill 1286 to reform the state’s civil asset forfeiture. His bill would require convictions for suspects’ property to be forfeited as well as reporting from law enforcement on seizures and forfeitures. In addition, the proceeds from the sale of forfeitures would be deposited to the state’s common schools trust fund.
Becker and the Institute for Justice have criticized North Dakota’s forfeiture law for its low thresholds for seizure and forfeiture, as well as the burden of proof on defendants to prove their property wasn’t involved in a crime.
North Dakota also has no mechanism requiring law enforcement to report seizures or forfeitures, leading to a “perverse incentive” of “policing for profit,” according to Becker, who brought similar, unsuccessful legislation in 2017.
“It’s simply a bad law,” said Becker, facing the committee and a gallery of North Dakota sheriffs and police chiefs, including those for Burleigh, Cass and Hettinger counties and Bismarck, Mandan and Fargo.
Wednesday’s hearing lasted 150 minutes with a procession of testimony for and against HB1286. Representatives of the American Civil Liberties Union, Institute for Justice, Americans for Prosperity North Dakota and the North Dakota Farm Bureau gave their support.
Lee McGrath, a managing attorney of the Institute for Justice, became somewhat animated in his testimony — raising and lowering his arms in describing the state’s “bifurcated” criminal and forfeiture proceedings.
“This is not a question of if the state of North Dakota can take someone’s property and take title to someone’s property,” McGrath said. “It is a process question. It is a how question and not an if question.”
North Dakota Attorney General Wayne Stenehjem teed off the opposing testimony, which also included McLean County State’s Attorney Ladd Erickson, Fargo Police Chief Dave Todd and Special Assistant U.S. Attorney Jeremy Ensrud.
Stenehjem said, since the Legislature adopted amendments to forfeiture in 1991, he has heard of no problems requiring “this wholesale change.”
He opposed the bill on its conviction requirement, noting some cases can’t land charges nor convictions, such as absconded drug dealers whose cash is seized.
Stenehjem also said forfeiture proceeds should go to North Dakota law enforcement, not the common schools trust.
“I think there’s more of a benefit to give this funding to the sheriffs and to the police and even to our office as well, for the purposes that you in the Legislature have permitted,” Stenehjem said.
In an interesting twist, Becker — as a member of the House Judiciary Committee — questioned Stenehjem and others opposing his bill, drilling into details such as charging defendants and those who abscond.
Erickson described forfeiture scenarios and his experiences involving North Dakota’s law, but first criticized the Institute for Justice for its “F” rating of the state’s law. He called the rating “a political or a media manipulation distinction.”
“They use that to get the media to say, ‘There’s an F here, so we should make some changes,’ but it doesn’t base itself in reality,” Erickson said.
Lawmakers dug into the bill, asking about absconded defendants, federal and game and fish practices, forfeiture proceeds — and related statistics, which don’t exist in North Dakota.
“We are in somewhat of a black box here, in which we don’t know,” McGrath said.
In concluding Wednesday’s hearing, Rep. Kim Koppelman, R-West Fargo, appointed Reps. Karla Hanson, Terry Jones and Bernie Satrom to a working group to receive feedback on items “that need to have some attention” in the bill.
“I’ve not done this before, so this is a new animal that we’re creating,” Koppelman said of the working group.
The House Judiciary Committee recessed its hearing on HB1286 to resume 8:30 a.m. Monday in the Prairie Room of the state Capitol at Bismarck.