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

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.Ěý

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 theĚý 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.Ěý

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

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.Ěý

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.

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,Ěýwith 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 BTĚěĚĂSchedler Honors College alumna Maleka Momand authored, “Guilty Until Proven Innocent: Civil Asset Forfeiture in Arkansas,” a policy brief supervised by BTĚěĚĂassistant 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 Ěýbased 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. Ěý

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 . Ěý

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 BTĚěĚĂSchedler Honors College thesis under the supervision of Dr. Jeremy Horpedahl. ACRE research and program assistant Aaron Newell has continued to expand on this work.

BTĚěĚĂassistant 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 BTĚěĚĂprofessor, 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 . Ěý

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

“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,” Ěý“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. Ěý

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 Ěýa 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. Ěý

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.”

It’s been thirteen years since the Supreme Court handed down its controversial ruling in that unleashed a wave of eminent domain reform in state legislatures across the country. Ilya Somin, Professor of Law at George Mason University teamed up with ACRE to look back at efforts made by the Arkansas legislature to protect private property, and to list the areas in current Arkansas eminent domain law that are still Ripe for Reform.

Eminent domain, a term that refers the power of government officials to take private property for public use, is clearly written into the Fifth Amendment of the constitution. However, the amendment also requires a just compensation for the taking. ĚýThis language is echoed in : “the right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefore.”

While the language is simple, it’s applications are not. For example, what exactly constitutes public use? Roads and post offices are generally accepted as public use government projects but in the Kelo decision, As Somin points out in his brief this is an abuse of the eminent domain power: “economic development and blight condemnations are not only constitutionally dubious, but also often destroy more development than they createĚýand Ěýinflict great harm on the poor, racial minorities, and the politically weak.”

Throughout the brief, Somin explores many aspects of Arkansas’s eminent domain laws. First he addresses the standard of just compensation in Arkansas as “fair market value.” Somin argues that Arkansas law may fail to take into account an owner’s “subjective value” of the property. Second, he addresses the eminent domain power conferred upon private pipeline companies that transport oil and natural gas through the state. There is a lack of clarity when it comes to pipelines that do not serve the general public but rather “selected private customers of the firm.” Finally, he discusses blight condemnations. In the brief, Somin suggests that Arkansas’s definition of blight may be so broad that “almost any feature that impedes development in some way can be characterized as an ‘economic or social liability’ or as detrimental to public welfare” and could be considered blighted. These three sections will be examined in detail in upcoming posts.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy. He is the author of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, co-editor of Eminent Domain: A Comparative Perspective as well writing and coauthoring many other works. Somin’s work has appeared in numerous scholarly journals, including the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, Georgetown Law Journal, Critical Review, and others.

In 2009, he testified on property rights issues at the United States Senate JudiciaryĚýCommittee confirmation hearings for Supreme Court Justice Sonia Sotomayor. He
writes regularly for the popular Volokh Conspiracy law and politics blog, affiliated withĚýthe Washington Post. From 2006 to 2013, he served as Co-Editor of the Supreme CourtĚýEconomic Review, one of the country’s top rated law and economics journals.

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

Erickson is a co-author of Ěýin whichĚýArkansas 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 forĚýa crime? To most people, this scenario sounds like highway robbery, but itĚýis 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?Ěý 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 ofĚýArgive, a regulatory research nonprofit in Silicon Valley.