VITAL POLICY- State Representative Jerry Sexton (R-Bean Station) Introduces Legislation Aimed at Reforming Tennessee’s Forfeiture Laws

Proposal Would Protect Private Property, Increase Due Process

Tennessee’s civil forfeiture laws enable the government to seize and to forfeit permanently private property on the “suspicion” that it has been used in the commission of a crime, under the lowest standard of evidence and outside the criminal court system, a practice that has constitutional experts alarmed.

Most private property and cash forfeited under this system in Tennessee happens by default. In many cases, legal challenges simply cost more than the property is worth. Additionally, the burden is generally on the property owner to prove the innocence of the property in order to challenge a civil forfeiture.

Under criminal forfeiture, as Sexton proposes, the state would have the burden of proving the seized property was the instrument of a crime.

State Representative Jerry Sexton’s bill, HB2525, “Criminal Forfeiture Process Act” would protect private property by eliminating “civil forfeiture” and replacing it with “criminal forfeiture”, a conversion that would guarantee citizens’ due process and ensure that property is taken from criminals, not innocent citizens. Currently, the fate of seized property is decided by an “administrative law judge”, a court that is unrelated to any criminal proceeding that may occur when property or cash is seized from a suspect.

Tennessee’s civil forfeiture system has been a concern for years. The Beacon Center of Tennessee points to the constitutional questions and the opinion of Supreme Court Justice Clarence Thomas in Leonard v. Texas in their analysis of civil forfeiture. Unconstitutional Use of Civil Forfeiture: by Julie Warren, July 17, 2017.

Sexton’s bill would also place limits on the use of “equitable sharing”, the practice used by law enforcement to bypass state laws that protect citizens from unjustified property seizures. Equitable sharing enables federal authorities to adopt cases, at the request of local authorities, to seize property under the suspicion of criminal activity and split the proceeds of the seizure with the local agency. To see a dashcam/body cam video of how this works, a link is provided here.

Legal scholars point to the high volume of small forfeiture cases that are adjudicated by default as proof that civil forfeitures are unfair and hardly worth fighting in court. The Institute for Justice states as follows:

Tennessee law is uniquely bad in that the median currency forfeiture is only $675 in Tennessee. This low dollar value means Tennesseans likely will default in administrative court.  They give up.  They don’t pursue their claims before an Administrative Law Judge who is assigned from the Secretary of State Administrative Procedures Division. That is approximately half the shockingly-low median currency forfeiture of $1,300 for the entire country.   Specifically, data from 21 states, including Tennessee, show half of all currency forfeitures are worth less than $1,300, hardly the stuff of vast criminal enterprises and far less than it would cost to hire an attorney to fight back. – Lee McGrath, Managing Attorney, Institute for Justice.

Activists in favor of the legislation, proposed by Sexton, include Americans for Prosperity (AFP). They stress the importance of preserving the tools needed by law enforcement to fight crime while creating proper due process to protect innocent citizens from arbitrary forfeitures. AFP provided the following statement for this article:

“This legislation would make the long-overdue switch from a civil forfeiture process to a

criminal forfeiture. We believe this bill strikes the right balance, allowing for necessary

exemptions, protecting Tennesseans’ property rights, and giving law enforcement the

tools needed to pursue the assets of criminals.” – Tori Venable, State Director, Americans for Prosperity Tennessee

Civil forfeiture cases are of such concern that the United States Supreme Court incorporated the Eighth Amendment to the states in a recent landmark case, Timbs v. Indiana in 2019, making forfeitures subject to the “excessive fines” clause.

David Seal is a retired Jefferson County educator, recognized artist, local businessman, and current Chairman of the Jefferson County Republican Party. He has also served Jefferson County as a County Commissioner and is a lobbyist for the people on issues such as eminent domain, property rights, education, and broadband accessibility on the state level.