What changes to civil asset forfeiture in Arkansas were made during the recent legislative session?

ACRE Research and Program Assistant Zach Burt analyzed “The Arkansas Civil Asset Forfeiture Reform Act of 2021,” also known as in “” in the Arkansas Democrat-Gazette on June 5th.

Burt defines civil asset forfeiture as “a legal mechanism that allows law enforcement and prosecutors to confiscate property used to commit a crime. Most often, seized property is cash, vehicles, and firearms, though sometimes it can be land or houses.”

Burt writes:

Sponsored by Senator Alan Clark, R-Lonsdale, the act attempts to change how spouses, parents and other innocent owners try to get back property that police seized from another person suspected of criminal activities.��

However, the act will do little to reform the process of civil forfeiture in the state because it fails to address the core problem: Arkansas law enforcement is focused on seizing property with low-dollar values, very different from the mythology of cartel members hauling hundreds of thousands of dollars across Interstate 40.”

Burt contrasts Act 1023 with , also by Clark, which failed to garner enough support to become law. Senate Bill 197 “would have offered new and necessary protections for Arkansans.”

Burt writes:

SB197 would have made civil asset forfeiture a criminal process rather than a civil one. This means cases would have to be dealt with in criminal courts, where citizens are guaranteed the right to an attorney.��In civil courts, Arkansans do not have this right, and must pay for legal representation out of their own pockets.

According to research done by the Institute for Justice, a public-interest law firm, the average legal costs for contesting seizures nationally amount to $3,000. No rational person would pay that much to get back property worth only $1,300, the median currency amount forfeited by law enforcement agencies across the country. However, such high legal costs relative to the low-dollar value of property seized is the norm in Arkansas.”

For more on this topic, ACRE Director and BT����Professor of Economics Dr. David Mitchell recently explained how often and how much property was taken through civil asset forfeiture since 2010 at a state Senate Judiciary Committee meeting on December 18, 2020 at the State Capitol.

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.).

For more on this topic, check out Burt’s “” published in the Arkansas Democrat-Gazette on March 22.

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 .

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.��

Angela Erickson, a former senior research analyst at the Institute for Justice (IJ), visited BT����in September to speak about civil asset forfeiture.

Erickson is a co-author of ��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.

Civil asset forfeiture occurs when property is permanently taken from a citizen who has never been convicted of a crime — essentially because law enforcement officers suspect that the property is a tool, or proceeds, of a crime.

Arkansas’s justice system isn’t required to obtain a criminal conviction before seizing property.

ACRE research cited by Erickson shows that law enforcement in Arkansas seized nearly $45 million between 2010 to 2015. This total doesn’t include the value of other items seized such as automobiles, jewelry, weapons and other items eligible for seizure under Arkansas law.

Arkansas should at minimum make civil asset forfeiture reporting by law enforcement more transparent.

According to Erickson:

“We need better accountability on just data so that citizens can look at it. Right now, you don’t know what’s happening in this state.”

You can watch her full presentation , and stay up to date on our videos by following our YouTube page.

Would you believe me if I told you a police officer could pull you over on the highway, take your cash, phone, and other valuables, and keep them without charging you for��a crime? To most people, this scenario sounds like highway robbery, but it��is a daily occurrence in Arkansas. Civil asset forfeiture is a legal practice that seems to violate common sense – police can seize anyone’s property under the mere suspicion that it is connected to a crime.

Civil asset forfeiture has roots in British common law but became increasingly popular in the United States during the War on Drugs in an attempt to take profit out of crime. Today, it is a profitable tool at all levels of government – and Arkansas is no exception. State and local law enforcement officials seize millions of dollars worth of cash and property every year, and Arkansas laws allow police to keep forfeiture proceeds for their own use. This creates a dangerous incentive for officers to take advantage of forfeiture at the expense of the innocent.

To what degree are civil asset forfeiture laws a tool used (and abused) in Arkansas?�� It turns out no group in Arkansas has examined that question. Because state and local records on forfeiture actions are difficult to get, capturing the true extent of forfeiture use in Arkansas nearly impossible. Nonetheless, ACRE Affiliated Research Analyst Maleka Momand collected significant data through Freedom of Information Act requests from local and state agencies. The findings are eye-opening.

Between 2010 and 2015, Arkansas law enforcement officials seized over $44 million in currency alone, a figure that does not account for the value of automobiles, jewelry, weapons and other items eligible for seizure under Arkansas law. For a full breakdown of seizures by year, please download our one-page summary of the findings.

After calculating the average amount of currency per person seized by each Arkansas county, a clear trend emerged: more seizures occur along Interstate 40. It is not out-of-state drug traffickers that are being impacted the most by seizure – it’s Arkansas residents. Seizure records indicate that between 2010 and 2015, recorded seizures from out-of-state property owners were never higher than 14%. Rather than seizing cash and property from drug traffickers traveling through Arkansas on I-40, law enforcement officials are seizing property from state residents the most.

In addition to disproportionately impacting Arkansas residents, ACRE data analysis finds a significant relationship between currency seizure amounts and county Hispanic populations. For each percent increase in a county’s Hispanic population, there is a corresponding $0.10 increase in average currency seizures per person.

Furthermore, no publicly available data exists to show how often seizures are justified. The Arkansas Asset Seizure Tracking System does not indicate whether or not the property owner was charged with or convicted of a crime, if the owner challenged the seizure in court, or if the property was ever returned. Despite millions of dollars at stake, it’s unclear if forfeiture is fulfilling its intended purposes of reducing crimes or preventing criminals from collecting a profit from crime.

A growing number of states, including neighboring Mississippi, are reforming their forfeiture laws to better protect property owners and remove the incentive for law enforcement officials to seize without just cause. In the 2017 session, Arkansas legislators rejected a civil asset forfeiture reform bill that would have strengthened the rights and due process protections for property owners. Given the amount of money and property seized from Arkansas residents, and the impact forfeiture has on minority populations, Arkansas’ forfeiture laws deserve a closer look. Limited transparency and the low burden of proof required to seize private property create a perverse incentive for law enforcement agencies to abuse civil asset forfeiture laws. Arkansans deserve to know how state law enforcement officials use forfeiture—and how often its use is justified.

Download Guilty Until Proven Innocent: Civil Asset Forfeiture in Arkansas for the full report.

Maleka Momand is an ACRE Affiliated Research Analyst. She holds a Bachelor of Arts in Political Science with a minor in Honors Interdisciplinary Studies from the University of Central Arkansas. She completed the research for this report as a Research Fellow with the Arkansas Center for Research in Economics under the supervision of Dr. Jeremy Horpedahl. Momand has had multiple op-eds published on this issue and her research has been cited by various news sources. She is currently the President of��Argive, a regulatory research nonprofit in Silicon Valley.