An investigation by Washington Post revealed that over 245 seizures of cash have occurred statewide without a warrant or filing any charges. Those seizures alone generated an estimated $29 million for Oklahoma law enforcement agencies.

Civil asset forfeiture is a process where the government, state or federal, may seize any property or money by claiming it may be connected to criminal activity in some way. The state may even pass your seized assets to the federal government by way of equitable sharing: this allows your property to fall under federal forfeiture and seizure laws instead of just the state laws, making it more difficult to have property returned to you.

The burden of proof in these proceedings is much lower than in criminal proceedings: Oklahoma only requires prosecutors to show a connection between criminal activity and the property by a preponderance of the evidence—which means more likely than not. Since the only thing in civil forfeiture that is required is this “reasonable proof” of criminal activity, it becomes fairly easy for the state to seize your assets.

The burden of proving innocence typically falls to the claimant, who must then prove a legitimate claim to the seized asset. Although the Supreme Court of the U.S. has ruled that the “innocent owner” defense isn’t constitutionally required, it is possible to utilize that defense by first proving (1) that you were not involved in any criminal activity and (2) that you either had no knowledge that your property was being used to facilitate a crime or that you took every step possible to terminate such use.

When assets are seized in these cases, even if the claimant successfully proves that there was no knowledge of criminal activity, the state is not required to return seized property. Likewise, no conviction, warrant or charge is required for the seizure of assets. This practice has become understandably controversial, due to the fact that many law enforcement agencies benefit from the proceeds of seized assets. In Oklahoma alone, the average amount from seized asset proceedings from 2000 to 2007 totaled roughly $5.5 million.

Why Forfeiture Laws Exist and How They Work

Seizure and forfeiture laws were designed to target organized crime rings, especially racketeering and drug rings. Many criminal laws contain their own forfeiture provisions, although that only comes into affect following a criminal conviction. While criminal forfeiture laws encompass more property, they have a higher burden of proof upon the government than civil forfeiture laws.

The Money Laundering Act of 1986 makes it illegal to engage in financial transactions using funds that are from “specified unlawful activities” with the intention of concealing the origin of the funds or evading state or federal currency reporting tactics. The “specific unlawful activities” includes a myriad of crimes, from drug manufacturing to violent crimes and even fraud. The currency reporting tactics referred to in the Act allow financial institutions to report any transactions in cash or currency over $10,000 to be reported to the federal government.

When the government believes that funds or property falls into these prohibited categories, authorities may seize it immediately and obtain a civil forfeiture, even if the funds or property is within the care of a third party. When this occurs with the federal government, authorities must also notify the owners of the seized assets within 60 days of the seizure.

At any time following the seizure, the property owner, or an authorized party wishing to challenge the seizure may file a claim with the appropriate agency. Following that, the government has 90 days to respond with a civil forfeiture proceeding in court, or to release the seized assets.

Numerous defenses exist to combat civil asset forfeiture cases, with the most basic being to challenge the government’s claims. If the government cannot show a preponderance of evidence that the currency or property was used in an unlawful activity, or that the owner was purposefully attempting to avoid financial reporting tactics, then the forfeiture claim will fail.

How to Fight—and Win

Although Oklahoma is currently seeking forfeiture law reform, it will be a slow process to change legislation. If you are currently facing a civil asset forfeiture proceeding, do not hesitate to contact us.

Forfeiture law, both state and federal, can be a difficult case for any seasoned lawyer. Due to the burden of proof being placed upon the claimant, it can be burdensome to combat the government when it may be your house, car, or entire savings that has been seized. Additionally, a forfeiture challenge must be handled delicately to avoid further damaging the claimant’s defense, especially when criminal charges may be involved. It is essential, then, to hire an experienced attorney to respond immediately to a forfeiture notice, to seek both the return of property and to guard against future forfeiture issues. Contact us now for a consult about your case.

Since 1980, the prison population in the United States has more than quadrupled. To put that in perspective, 1 out of every 100 adults is locked up. With over 2,000,000 people incarcerated, the United States has a mass incarceration rate like no other.

Last year, the awareness of the need for sentencing reform caught wind and began gaining support like never before. In July of 2015, President Obama visited a prison in El Reno, Oklahoma and spoke with inmates in a public push for sentencing reform. During his press conference, President Obama noted, “These are young people who made mistakes that aren’t that different from mistakes I made and the mistakes that a lot of you guys made. The difference is they did not have the kinds of support structures, the second chances, the resources that would allow them to survive those kinds of mistakes.”

President Obama noted that mostly drug offenses are responsible for doubling the country’s incarceration rate since the 1980s. “The United States accounts for 5% percent of the world’s population, and yet we account for 25% of the world’s inmates.” President Obama points out that we sometimes take it for granted that so many young people end up in our criminal justice system. “It’s not normal. It’s not what happens in other countries. What is normal, is teenagers doing stupid things.”

In a sit down interview with the president, Vice Media CEO, Shane Smith points out how there are, “more federal incarcerations for drug offenses than there are for homicide, aggravated assault, kidnapping, robbery, weapons, immigrations, arson, sex offenses, extortion, bribery etc. combined.” Responding as to how this increase in mass incarceration happened, President Obama states, “I think there was a lot of fear. During the war on drugs, the crack epidemic became a bipartisan cause to get tough on crime.”

The war on drugs began in the 1980s and grew in ferocity in the 1990s. To fight drug use, Ronald Reagan passed tough mandatory minimum drug penalties, and his successor George H.W. Bush enforced even harsher laws. By 1994, 34 states had instated mandatory minimum sentencing laws for drug convictions.

In the summer of 2015, President Obama granted clemency to 44 non-violent offenders, the most since the 1960s. Later that year, he commuted sentences for 96 more. All of the prisoners pardoned were convicted with mandatory minimums in place.

One prisoner with a mandatory minimum sentence who is currently serving time in Oklahoma is Kevin Ott, whose story was told in “The House I Live In” (2012). Kevin is serving a sentence for trafficking methamphetamines. Kevin has a life-without-parole sentence for selling 3 ounces of methamphetamine in a non-violent case. Without a retroactive change in mandatory minimum sentencing laws, Kevin will never have the chance to correct his mistake in a free world.

Even judges disagree with mandatory minimum sentences for non-violent drug charges. Judge Paul Cossell points out how the system forced him to give such harsh sentence to a first-time offender Weldon Angelos. “It ties the judges hands…Mandatory minimums can be used to send a message, but at some point the message gets lost. If he had been an airplane hijacker, he would have gotten 25 years in prison. If he’d been a terrorist, he would’ve gotten 20 years in prison. If he was a child rapist, he would’ve gotten 11 years in prison, and now I’m supposed to give him a 55-year sentence? I mean, that’s not right.”

In a proud show of bipartisan collaboration, Senator Chuck Grassley and a group of senators held a press conference on Oct. 1, 2015 to announce their agreement on a criminal justice reform bill that would address mandatory minimum sentencing. S.2123 is known as the Sentencing Reform and Corrections Act. In a press conference for it’s introduction, Senator Grassley begins, “This is truly a landmark piece of legislation. It’s the biggest criminal justice reform in a generation. It’s the product of a very thoughtful, bi-partisan deliberation by the congress.”

The United States House and Senate both have bills regarding sentencing reform. Both the bills are currently past committee pending action on the house and senate floor. Read the summary of the bill and a list of cosponsors here.

This year promises to bring major advances in criminal justice reform, and it’s an exciting time to be a part of such tremendous progress in our national justice system.

Sources:

https://www.youtube.com/watch?v=pDVmldTurqk

http://host.madison.com/wsj/news/opinion/column/guest/los-angeles-times-pass-the-sentencing-reform-bill/article_84febbb9-9902-53a1-8e4a-39e5c4d58895.html

https://www.youtube.com/watch?v=1MHWIrDyU9k

http://www.parallel-universe.com/the_war_on_drugs/

https://www.youtube.com/watch?v=bjWSW94-P3Y