Legislation Expires in Tennessee General Assembly on Civil Asset Forfeiture – Reporting Standards and Due Process Delayed

By David Seal

With the conclusion of the 111^th Tennessee General Assembly, adjourning sine die, a number of bills of great interest have expired. Among those are civil asset forfeiture bills sponsored by Representative Martin Daniel (R-Knoxville) and Senator Frank Niceley (R-Strawberry Plains). HB 340 / SB 362 as amended would have repealed a code section requiring the subject of a property seizure to post a $350 bond in order to challenge a forfeiture. In Tennessee, property can be seized if it is suspected to be in connection with a crime. Subsequently, the seized property can be forfeited in a civil proceeding without criminal charges or conviction. The bond requirement is viewed by the bill sponsors as an impediment to due process. Often the cost of posting a bond and hiring an attorney is more expensive than the value of the property itself, causing a large number of forfeiture cases to be uncontested. The Daniel/Niceley bill was aimed at alleviating some of the cost burden required for a hearing, increasing the standard of evidence required for forfeiture, and requiring Attorney General review of each case. The bill had 39 co-sponsors in the Tennessee House.

Representative Justin Lafferty (R-Knoxville) and Senator Mark Pody (R-Lebanon) sponsored legislation to compel the Tennessee Department of Safety to report a number of civil forfeiture statistics by February 1 of each year. Lafferty, the prime sponsor of HB 862 reminded the House Judiciary Committee on June 8, 2020 that 11 million dollars of cash and property were seized in the state of Tennessee in calendar year 2018 with no criminal conviction, and no meaningful due process in a court of law. Representative Michael Curcio (R-Dickson), Chair of the House Judiciary Committee, provided the amendment (HA 890) that added 26 categories of reporting to the bill, including a requirement that forfeiture data be open to the public.

As experts on the topic of civil forfeiture recently stated in a Summer study session, civil forfeiture hearings are conducted in Tennessee by an administrative judge that is employed by the Tennessee Department of Safety, an agency that would financially benefit from forfeitures, and not by a court of law as part of a criminal proceeding. Had the Lafferty/Pody reporting bill been enacted, it would have revealed the number of cases, number of arrests, race, dollar amount, conviction rate, number of contested forfeiture hearings, and many other demographics associated with forfeiture cases on an annual basis. The Tennessee Senate concluded its session without voting on the bill, essentially causing the bill to expire.