DOVER –Rep. Kim Williams has introduced House Bill 115 to address the deficiencies plaguing Delaware’s civil asset forfeiture laws.
“A person is innocent until proven guilty,” said Rep. Williams, D-Prices Corner. “The current civil asset forfeiture system doesn’t reflect that notion. The system runs counter to our values as individuals can lose their property, such as cash or vehicles without having been arrested or convicted of a crime. We must not allow those to fall through the cracks and swept up into this unjust system. It is imperative that we fix this to protect all Delawareans.”
Navigating the civil asset forfeiture process without counsel can be difficult and cost-prohibitive for individuals or innocent third-parties. Even when you win, you lose.
Between 2018-2021 there were at least 2,527 cases of individuals having their assets seized. Only 4.4% of individuals had property returned, with the assets of more than 170 individuals seized although they weren’t arrested.
According to Williams, the Institute for Justice graded Delaware’s laws a D-, specifically calling out its low standard of proof, lack of protections for innocent third-parties, and financial incentives. This proposed legislation begins to address all three areas by:
· Ensuring individuals have access to representation, via the Office of Defense Services.
· Redirects forfeiture proceeds to Delaware’s General Fund instead of the Special Law Enforcement Assistance Fund (SLEAF).
· Shifts the burden of proof from the individual to the State and raises the burden of proof.
“This bill is an important advancement in criminal justice reform that would bring our system more in line with our shared values of justice and fairness,” said Sen. Kyle Evans Gay, D-Talleyville, the Senate prime sponsor of HB 115.
“At best, Delaware’s current civil asset forfeiture process is complex and confusing. At times it also can be punitive, cruel and unfairly applied to people who have never been convicted of a
crime,” said Senate Majority Leader Bryan Townsend, D-Newark/Bear. “Our efforts to make Delaware’s criminal justice system fair for all its residents will not be complete until we have reformed this fundamentally unreasonable and unjust component of the law.”
HB 115 would rectify the above-mentioned issues related to civil asset forfeiture. Among the changes, this legislation would also:
· Require a conviction before forfeiture, ensuring that no one has their property forfeited without first being convicted of the connected crime.
· Reduce the burden on third-party individuals who have had their property seized due to another’s conduct.
· Require a hearing before forfeiture. Currently, it is on the individual to request a hearing, which can be a barrier to individuals recovering their property.
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Because of Civil Asset Forfeiture, a person can lose their money and property without even being arrested or convicted of a crime. This is wrong and unfair – and in Delaware this practice has had a largely disproportionate impact on Black citizens,” said Chief Defender Kevin O’Connell. “The changes proposed in this legislation are long overdue and bring greater balance, support, and protections for defendants and third parties. Thank you to Rep. Kim Williams, Sen. Kyle Gay, and Rep. Madinah Wilson-Anton for championing this cause.”
The bill would also end the presumption that money in proximity to controlled substances is drug proceeds, and the presumption that cash with race amount of drugs equates to drug proceeds. Additionally, HB 115 would sets a minimum amount of cash that can be seized and forfeited; and increase transparency by requiring detailed DOJ reports to include data on demographics, case outcomes and amount and type of forfeiture cases.
“Civil asset forfeiture disproportionately targets low-income communities of color that are already overpoliced and under protected,” said Javonne Rich, Policy and Advocacy Director for the ACLU of Delaware. “When law enforcement stands to benefit from forfeiture profits, the system is ripe for abuse and corruption. It’s past time for Delaware to take steps toward meaningful reform by requiring a conviction before forfeiture.”
“This legislation isn’t just about reforming criminal justice it’s about re-emphasizing our founding principles of protection from search and seizure and innocence until proven guilty,” said Rep. Wilson-Anton, D-Newark. “This is about addressing how we approach racial justice issues in 2023.”
Wilson-Anton explained that data from the state’s Department of Justice illustrated the disproportionate impact forfeiture cases had on Black individuals. For example, in 2021, the Delaware DOJ reported 514 forfeiture cases, with nearly 70% involving those who were Black. Between 2018 and 2020, Wilson-Anton shared that the DOJ tracked 1,720 forfeiture cases, with 72% involving Black individuals. She added that undocumented individuals and members of immigrant communities are also disproportionally impacted.
The bill has been introduced and will be assigned to the Public Safety & Homeland Security Committee.
