By Caleb Taylor

What are the differences between state and federal constitutional law? How do lawyers use state constitutions to protect their clients? How do state laws differ from those at the federal level in protecting individual rights?

Come learn the answers to these questions and more from Institute for Justice Senior Attorney Justin Pearson in a virtual event “Our State is Freer Than Yours: How State Constitutions Protect Individual Rights�� on March 4th at 4 p.m. sponsored by the Arkansas Center for Research in Economics, Economics Arkansas and the Institute for Justice.

Pearson was the lead attorney in a successful 2016 case that taxi cab permit applicants to “prove they would not take customers away from Little Rock’s only existing taxi company.” Pulaski County Circuit Court ruled in favor of�� Pearson’s client, Ken Leininger, saying that Little Rock’s city code violated the Arkansas Constitution, which prohibits the government from creating a private monopoly.

The Little Rock Board of Directors later granted Leininger’s request for seven new taxi cab permits.

During the event, Pearson will discuss how he was able to rely on a provision in the Arkansas Constitution that does not exist in most states.

Concepts from this session can be tied to for teaching Civics, U.S. Government, Business, Entrepreneurship, and other courses in the social studies content area. The event is open to all, and educators attending this session will receive 1 hour of professional development credit and free resources to take back to their classrooms.

You can register for the event .

How much cash and property was seized by law enforcement in Arkansas since 2010?

ACRE Director and BT����Associate Professor of Economics Dr. David Mitchell explained how often and how much property was taken through civil asset forfeiture since 2010 at a state Senate Judiciary Committee meeting at 1 p.m. Friday, December 18 at Room A in the MAC Building at the State Capitol.

Mitchell Testimony

Mitchell testified Arkansas has averaged about 1400 seizures per year, or about four per a day, since 2010.

��Mitchell said:

It is something that happens all the time. It’s not a rare occurrence. It happens all the time.”

Mitchell testified that over $68 million in currency has been seized by law enforcement since 2010. That’s about $75 million if numbers are adjusted for inflation to 2020 dollars.

Mitchell said:

Most of the currency seizures are relatively small amounts. Almost half of the currency seizures are under $1,000. The median is $1,045.”

The following chart shows the size of currency seizures, illustrating that they are mostly small amounts.��

Prosecutor Responds

of 2019 replaced civil asset forfeiture with a criminal procedure with some big exceptions. The law prohibits the state from seizing cash or property without a conviction first unless an exception applies. These include:

• being granted immunity or reduced punishment in exchange for testifying or assisting a law enforcement agency or prosecution
• fleeing or failing to appear in court
• abandoned or disclaimed ownership in the seized property
• agreed in writing with the prosecuting attorney to give up the property

The law was signed by Gov. Asa Hutchinson on March 15, 2019. It was sponsored by State Senator Bart Hester R-District 1 and State Representative Austin McCollum R-District 95. It and with .��

ACRE Affiliated Researcher and Bowen School of Law student Aaron Newell discussed the reform in an op-ed entitled “” in the Arkansas Democrat-Gazette on June 20, 2019.

Bob McMahan, Prosecutor Coordinator for the Office of the Prosecutor Coordinator, discussed Act 746 and why civil asset forfeiture is an “important tool” for prosecutors and law enforcement.

McMahan said:

The prosecutors actually assisted in the drafting of that specific piece of legislation to address at the time one of the most important concerns of the legislature to make sure that there was a conviction prior to forfeiture. We not only endorsed that, we assisted in the drafting of that. Forfeiture is an important tool for prosecutors and law enforcement. These are assets that are taken in conjunction or used with a crime. It’s a way to dismantle drug operations. It’s certainly a way to get after drug dealers by taking property.”

Sylvester Smith Testimony

Sylvester Smith, a defense attorney and President of Change Agents Inc., explained how civil asset forfeiture was used on the property of one of his clients, Patricia Tackett, in Hot Springs and asked for the legislature to consider certain changes to the law in order to make it easier for “innocent people” to reclaim property seized by law enforcement.��

Smith said:

I think civil forfeiture is a legit tool for prosecutors to use to stop these illicit enterprises of various natures. However, the system needs to be fixed because innocent people are getting caught up in it.”

Smith suggested changing current law which requires an owner to prove they had no “knowledge or consent” of their property being used by someone to commit a crime in order to reclaim said property from law enforcement. Smith said he’d like “knowledge or consent” to be changed to “knowledge and consent” to further protect innocent property owners.��

A copy of the data and graphs he used in his presentation to committee members can be viewed . You can watch the meeting (Mitchell’s presentation begins at 1:42:27 p.m.).

By Caleb Taylor

How much cash and property was seized by law enforcement in Arkansas?

ACRE Director and BT����Associate Professor of Economics Dr. David Mitchell will answer this and more at a state House and Senate Judiciary Committee meeting at 1 p.m. Friday, December 18 at Room A in the MAC Building at the State Capitol.

A copy of the data and graphs he’ll explain to committee members can be viewed . A copy of the meeting agenda can be viewed . A link to livestream the meeting will also be posted on the .��

ACRE researchers have previously discussed reforms to civil asset forfeiture and how often the practice takes place in Arkansas

of 2019 replaced civil asset forfeiture with a criminal procedure with some big exceptions. The law prohibits the state from seizing cash or property without a conviction first unless an exception applies. These include:

• being granted immunity or reduced punishment in exchange for testifying or assisting a law enforcement agency or prosecution
• fleeing or failing to appear in court
• abandoned or disclaimed ownership in the seized property
• agreed in writing with the prosecuting attorney to give up the property

The law was signed by Gov. Asa Hutchinson on March 15, 2019. It was sponsored by State Senator Bart Hester R-District 1 and State Representative Austin McCollum R-District 95. It and with .��

ACRE Affiliated Researcher and Bowen School of Law student Aaron Newell discussed the reform in an op-ed entitled “” in the Arkansas Democrat-Gazette on June 20, 2019.

Former ACRE Fellow and BT����Schedler Honors College alumna Maleka Momand authored, “Guilty Until Proven Innocent: Civil Asset Forfeiture in Arkansas,” a policy brief supervised by BT����Assistant Professor of Economics and ACRE Scholar Dr. Jeremy Horpedahl.

Our infographic describes forfeiture in Arkansas through 2018�� based on data from Freedom of Information Act requests to the Drug Director of Arkansas. Mitchell’s presentation updates and expands on this data based on Newell’s continued research.

For more of ACRE’s work on this issue, you can check out “Civil Asset Forfeiture in Arkansas,” a summary blog post of research by Momand in May 2017.

ACRE also invited Angela Erickson to speak about civil asset forfeiture as part of our Distinguished Speaker Series on September 19, 2017.��

Erickson is a former senior research analyst at the Institute for Justice (IJ) and a co-author of (2nd ed.) in which Arkansas receives a D-. Her work has been cited by the Obama White House, the U.S. Supreme Court, numerous newspapers including the Washington Post and the Wall Street Journal, and by research published in several academic journals. You can watch her talk on .

Since the killing of George Floyd on May 25, 2020, many states are dealing with increased demands to remove statues honoring Confederate Soldiers.��

In particular, the city of Hot Springs, Arkansas has been . Because the statue is on private property, the city faces only two legal options: the owners– the United Daughters of the Confederacy (UDC) — could decide to move it, or the city could exercise its power of eminent domain, reigniting previous concerns about limitations on the range of purposes for which property can be condemned.��

According to , UDC has no plans to relocate the statue.

There has been massive eminent domain reform across the nation since the Supreme Court’s ruling in (2005), a ruling that remains controversial. In 2018, llya Somin, Professor of Law at George Mason University, teamed up with the�� Arkansas Center for Research in Economics to write a policy brief on the ways in which Arkansas eminent domain law could be reformed.

One of the main concerns over eminent domain law is the way in which “fair market value” is computed. While the law requires property owners be compensated for the property being taken, the fair market value often does not include the subjective or sentimental value the property or location of the property holds for the owner.��

One solution to this problem, recommended by Somin, is to consider adding a set premium on top of the fair market value (say 20%).��

Additionally, the provided definitions for blight condemnations are broad and subjective, allowing for nearly any property to be ruled an ‘economic or social liability’ or as detrimental to public welfare” and be considered blighted. Somin recommends that blight condemnations be severely curtailed, if not abolished entirely.��

Somin also addresses the eminent domain power of private pipeline companies and the lack of clarity concerning pipelines that serve private customers of the firm rather than the general public. He suggests that eminent domain should be limited to genuine “common carrier” pipelines, as private pipelines should not have the same privileges as public utilities.

As Hot Springs and other cities around the nation consider their legal options as they pertain to the removal and relocation of Confederate statues, discussion of eminent domain powers has begun to circulate again. The application of these powers are often far from simple, and the law still leaves much room for reform. For more information about Arkansas eminent domain law and its applications, see Somin’s policy brief Ripe for Reform.

BT����students were able to hear how ordinary people are able to create meaningful change in the world at the last ACRE Speaker Series event of 2019, on November 5.��

Nan Doyal spoke about her book, Dig Where You Are, which introduces readers to seven people who have solved some of the biggest challenges facing our societies today.��

From the slums of Mumbai, the villages of Tibet and northeast Thailand, the inner cities of Philadelphia and San Francisco, and a ghetto outside Stockholm, Dig Where You Are tells of an artist, a surgeon, a teacher, a criminologist, an economist, a community organizer and a general physician each of whom saw a way beyond suffering and injustice, took responsibility for the well-being of others and ended up transforming lives and communities across the world.

Doyal told BT����students one aspect that interested her about these seven people is how they used business enterprises to solve these challenges.��

Doyal said:

They take no public funding. Everything they do is self-sustaining in one way or another. One of the guys in Thailand told me, ‘What we do is too important to depend on donors or even the government so we have to be self-sustaining to make sure our work continues.’ A number of them run businesses associated with what they’re doing and those businesses are actually a part of the model that makes it work.”

The event was part of ACRE’s Speaker Series at the BT����College of Business.

To see more of ACRE’s past speakers, subscribe to our .

By Aaron Newell

Civil asset forfeiture reform has been on the minds of Arkansas legislators, as well as policymakers around the country.

The US Supreme Court, in a unanimous opinion in Timbs v Indiana, ruled that the excessive fines clause of the US Constitution applied to state laws, and in particular civil asset forfeiture laws. This means that states can’t fine you or take your property in excess of the fine amount that is associated with the crime committed.

In Arkansas, legislators are doing even more.

Sen Bart Hester (R-Cave Springs) introduced a bill () that would end civil asset forfeiture and replace it with a criminal procedure. The bill would prohibit the state from seizing cash or property without a conviction first,��with some exceptions. These exceptions include:

The bill has now been signed into law.

ACRE researchers have worked on this issue as well. Former ACRE Fellow and BT����Schedler Honors College alumna Maleka Momand authored, “Guilty Until Proven Innocent: Civil Asset Forfeiture in Arkansas,” a policy brief supervised by BT����assistant professor of economics and ACRE Scholar Dr. Jeremy Horpedahl. Her work has been updated by myself and Horpedahl. Our newest infographic describes forfeiture in Arkansas through 2018 ��based on new data from FOIA requests to the Drug Director of Arkansas.

Total cash seizures between 2010-2018 total $59 million. We also know that the percentage of seizures that targeted Arkansans rather than citizens from other states has remained steady. We also updated the counts of vehicles, firearms, and other assets. ��

For more of ACRE’s work on this issue, you can check out:
Civil Asset Forfeiture in Arkansas summary blog post by Maleka Momand
Guilty Until Proven Innocent: Civil Asset Forfeiture in Arkansas policy brief by Maleka Momand (you can also listen to the)
One page infographic on civil asset forfeiture in Arkansas

ACRE also invited Angela Erickson to speak about civil asset forfeiture as part of our Distinguished Speaker Series. Erickson is a former senior research analyst at the Institute for Justice (IJ) and a co-author of (2nd ed.) in which Arkansas receives a D-. Her work has been cited by the Obama White House, the U.S. Supreme Court, numerous newspapers including the Washington Post and the Wall Street Journal, and by research published in several academic journals. You can watch her talk on . ��

CORRECTION: An earlier version of this post did not list the exceptions in the new law.

Most people don’t realize that police officers can seize and keep the property of individuals even if that person is never convicted of a crime. It’s called “civil asset forfeiture,” and a new US Supreme Court decision is putting stricter limits on it.

ACRE’s database of seizures was started as Maleka Momand’s ACRE Research Fellow Project and BT����Schedler Honors College thesis under the supervision of Dr. Jeremy Horpedahl. ACRE research and program assistant Aaron Newell has continued to expand on this work.

BT����assistant professor of economics and ACRE scholar Jeremy Horpedahl explains the impacts on Arkansans, in Eric Besson and John Moritz’s Arkansas Democrat-Gazette article, “.”*

“Horpedahl, the BT����professor, called the ruling a “pretty big step,” but noted that most cash seizures by law enforcement are less than $1,000.

Horpedahl said his data from 2010-18 includes 9,976 cases in which cash was taken and a dollar amount was listed.

Of those, 51.7 percent were for $1,000 or less and 26.9 percent were for $500 or less, he said. Conversely, there were 15 seizures for $1 million or more, and 32 for $500,000 or more.

Horpedahl said people often lose small-dollar amounts or low-value assets without a criminal conviction because they don’t have the means to challenge a forfeiture filing. That underscores the importance of the draft bill by Hester and McCollum, he said.

“If a law like [SB308] were passed or if the law was changed so they did have to have a conviction, it would probably eliminate a lot of those small cash takings,” Horpedahl said.”

For more of ACRE’s work on this issue, you can check out:
Civil Asset Forfeiture in Arkansas summary blog post by Maleka Momand
Guilty Until Proven Innocent: Civil Asset Forfeiture in Arkansas policy brief by Maleka Momand (you can also listen to the)
One page infographic on civil asset forfeiture in Arkansas

ACRE also invited Angela Erickson to speak about civil asset forfeiture as part of our distinguished speaker series. Erickson is a former senior research analyst at the Institute for Justice (IJ) and a co-author of (2nd ed.) in which Arkansas receives a D-. Her work has been cited by the Obama White House, the U.S. Supreme Court, numerous newspapers including the Washington Post and the Wall Street Journal, and by research published in several academic journals. You can watch her talk on . ��

*CORRECTION: The original amount reported included a mistake for total cash seized between 2010-2018. The correct numbers for��Arkansas law enforcement agencies seizures are nearly $59 million in cash from 2010-18, about $6.5 million per year.��

“Blight condemnations” might sound like a reasonable measure to ensure community members are safe and that property that is seriously dilapidated isn’t just left to rot. But there is a danger that government officials could abuse Arkansas’s overly broad definition of blight. Furthermore, the threat of eminent domain laws being used this way could actually make blight in Arkansas worse.

In my blog posts “How to Reform Eminent Domain Law,” ��“Fair Market Value Compensation: Is This The Right Standard,” and “Blurring the Lines of Public Use: Pipeline Takings,” I give an overview of the first two issues Ilya Somin addresses in his new ACRE policy brief “Ripe for Reform: Eminent Domain Law in Arkansas.”

In this post, I will discuss the third and final area with potential for abuse: blight condemnations. In his brief Somin’s primary concern is that overly broad definitions of blight can include almost any property, which creates insecure property rights.

Arkansas’s current definition of what qualifies as blight comes from the which was passed in 2001 to “prevent, arrest and alleviate blight and decay in communities.” It allows the transfer of blighted property to private entities through the use of eminent domain under this definition: “blighted area includes any area which…substantially impairs or arrests the sound growth of a city, retards the provision of housing accommodations, or constitutes a social liability.” Since any property could be further developed, this does not act as a meaningful constraint on the state’s powers. ��

Additionally, the fear that one’s property might be condemned could disincentivize investment and repairs in neighborhoods, therefore reinforcing blight. In the brief Somin states, “one key to the development of poor areas is the security of property rights, without which residents may be reluctant to form valuable community ties or invest and start businesses.”

The broad definition of blight in Arkansas “allows the use of eminent domain for what are essentially pure economic-development projects,” according to Somin. Arkansas legislators could respond by limiting blight condemnations to “areas that are severely dilapidated or pose a direct threat to public health.” Or Arkansas could also follow the lead of states like Florida and New Mexico that have abolished blight condemnations entirely.

This concludes my blog series. Keep an eye out for my upcoming policy review of eminent domain in Arkansas with co-author ACRE Scholar-In-Residence Dr. Zack Donohew. In his brief, Somin identified potentials for abuse of eminent domain. We’ll be examining whether any such abuse in Arkansas is actually happening in practice.

In my blog posts “How to Reform Eminent Domain Law” and “Fair Market Value Compensation: is this the right standard” I began to look at the issues Ilya Somin addresses in his new ACRE policy brief “Ripe for Reform: Eminent Domain Law in Arkansas.” In this post, I will look into a second area with potential for abuse: pipeline takings.

Pipeline companies are given the power to condemn in the state through Arkansas Code §23-15-101, being classified as a “common carrier” that is “required by law to carry for all alike.” Somin points out that pipeline corporations are seeking to overcome the “holdout problem” when using their eminent domain power. Often, a project can be delayed if one landowner refuses to sell portions of their property during negotiations. However, pipelines are, just like all other condemning authorities, only supposed to use the eminent domain power for public use. As discussed in my previous posts, however, the case law surrounding eminent domain has blurred the lines between public use and public benefit.

The debate hinges on who is serviced through the line. For example, a public utility is obligated to service the entire public, but a private pipeline company could be building a line that will only be used to transport ��a resource to another private corporation. This was the situation in (2010) that was decided by the Arkansas Supreme Court. Midstream Gas Services Corp. petitioned to use the eminent domain power across Perry and Kathy Linder’s property in Cleburne County to build a pipeline that would deliver natural gas to Chesapeake Operating Inc.

The Linders challenged the constitutionality of the action, arguing that was in violation of , which clearly specifies the public use mandate, but the Linders failed to convince the court. The Arkansas Supreme Court has addressed this issue dating back to railroads in 1893 and has remained flexible on what public use means for “common carriers”. The Court summarized its ruling in this way: “The character of a road, whether public or private is not determined by its length or the places to which it leads, nor by the number of persons using it. If it is free and common to all citizens, it is a public road though but few people travel upon it.” As long as the pipeline is not closed off to others who wish to use it, it is considered public use.

Somin argues that “Arkansas legislators should pass laws making clear that eminent domain may only be used for pipelines that are genuine common carriers.” Arkansas almost accomplished this in 2017. would have put more restrictions on pipeline companies by requiring the Arkansas Public Service Commission to verify common carrier status, but the bill died in the House Committee on Insurance and Commerce. Arkansas should consider the impact of eminent domain by pipelines to ensure property rights are not losing out to influential business interests.

In my previous post, I gave an overview of ACRE’s most recent eminent domain policy brief by George Mason Professor of Law, Ilya Somin: “Ripe for Reform: Eminent Domain Law in Arkansas.”

The first aspect of Arkansas eminent domain law that Somin points out as having a potential for abuse is fair market value.

Fair market value in Arkansas is defined as “the price a willing buyer would pay a willing seller after considering all factors in the marketplace that influence the price of private real property.” A lot goes into the determination of fair market value: the property’s size, its accessibility, sale history in the surrounding area, its zoning, damages to the land or assets. Somin argues that these characteristics leave out one important factor when deciding the value of compensation: subjective value.

Subjective value is the “value property owners attach to the land above the market value.” For example, the condemnation of a small-business owner’s building, forcing relocation, may cause the loss of local customers or perhaps a church loses members of it’s congregation. ��

Somin suggests the simplest approach to this dilemma would be setting a 20-30 percent premium to the fair market value of property that has a high subjective value. This has been applied in other states already. The state of Indiana requires the compensation for the taking of a person’s home be 150% of the fair market value. Though an imperfect measure, this outcome is preferable to chronic undercompensation.

My next post will look into the potential problems in pipeline takings that Somin discusses, particularly whether pipelines are truly “common carriers.”