This commentary is by state Reps. Felisha Leffler, R-Enosburg Falls, and Barbara Rachelson, D-Burlington.
One of us is a lifelong Democrat, who ran in the past two elections as a Democrat/Progressive; the other is a Republican. We’ve stood across the aisle from one another on most debates and rarely ever voted the same way on major issues.
But despite our differences, we’ve formed an unlikely partnership where the Venn diagram of our politics intersect: civil liberty and protection from inappropriate government interference.
We have enthusiastically come together to fix one of Vermont’s biggest injustices: civil forfeiture. With this currently legal maneuver under Vermont law, the government can permanently confiscate cash, cars, and even homes without the owner ever being charged with anything or stepping foot inside a courtroom.
On Wednesday, Feb. 2, the Vermont House Judiciary Committee held a hearing on a bill we introduced, H.533, to end civil forfeiture once and for all in Vermont.
By abolishing civil forfeiture, Vermont can ensure that innocent people, especially the indigent, are guaranteed their right to counsel and have the chance to get their property back. If enacted, our bill would require a criminal conviction for all forfeiture cases, except for a few, narrow exceptions, such as when an owner has died or been deported.
In 2015, Vermont attempted to require a criminal conviction for civil forfeiture cases, but in doing so, multiple loopholes were created. The biggest, by far, involves default judgments. Currently, if an owner fails to file a claim in civil court, the property is automatically forfeited to the government — no criminal conviction required.
But all too often, hiring a lawyer to try to win back the property costs far more than the property is worth. And unlike in criminal cases, there is no right to an attorney for civil forfeiture. That means many owners, especially the indigent, are forced to walk away, letting law enforcement bypass the state’s conviction provision.
Data has borne this out in other states. In Minnesota, which passed a similar conviction provision one year before Vermont did, only one in five owners filed a claim for their property, leading to widespread default judgments. That meant roughly 80% of all forfeiture cases after reform still took place without a criminal conviction, according to a report from the Institute for Justice.
But if our bill is enacted, forfeiture would become a purely criminal proceeding. This would close the default-judgment loophole and provide all owners with a right to an attorney. So, instead of the complex two-track system that plays out right now in both civil and criminal court, property would be forfeited under a single, streamlined process in criminal court. And to further guarantee the right to counsel, our bill would use forfeiture proceeds, in part, to better fund public defenders.
Additionally, H.533 would add new safeguards to further protect the civil liberties and property rights of Vermonters. Our bill would squarely place the burden of proof on prosecutors, so that innocent third-party owners would no longer have to prove their innocence to win back their property.
H.533 would create a prompt, post-seizure hearing to let forfeiture victims have their day in court far sooner than occurs now. This hearing would ensure Vermonters would get the process they are due and prevent police from using stalling tactics to gain leverage over owners. To better protect working-class Vermonters from wrongful seizures, our bill would prevent law enforcement from confiscating homes, cash under $200, and vehicles valued at under $2,000.
Last year, Maine became the fourth state to replace its civil forfeiture process with criminal forfeiture, joining Nebraska, New Mexico and North Carolina. By following their lead, Vermont can foster a truly just criminal justice system.
We are truly committed to making Vermont the fifth state to end civil forfeiture. We are proud to be one example of how politics does not have to get in the way of doing what’s right for Vermonters.
