EDITORIAL: Asset forfeiture steals due process rights

On a dark desert highway, a sleek, Navy-blue Ford Explorer forces a car to the side of the road. Armed men emerge from the SUV and demand that the occupants of the car open their trunk. Inside, they find $250,000 in cash.

The men take the money, leaving the car's passengers on the roadside. They disappear back into the night, planning how they will use their ill-gotten gain.

In almost every instance, what you've just read about constitutes the crime of armed robbery.

But suppose you were to learn that the SUV's armed occupants were sheriff's deputies in a rural county, and that their seizure of cash was perfectly legal?

This is far from a hypothetical scenario. It has occurred in Nevada time and time again, with the full support of the courts and the criminal justice system.

And it's even worse than that: In order for the victims of asset forfeiture to get their money back, they must go to court to prove the money comes from a legitimate source, a due process violation every bit as egregious as a warrantless search or secret witnesses in a criminal case.

The Review-Journal's Adelaide Chen recently examined the forfeiture issue in Las Vegas, and uncovered some breathtakingly disturbing comments from some of the people charged with enforcing the law.

"The impression is that we have it [the assets] and we're not going to give it back," said Chief Clark County Deputy District Attorney Thomas Moreo. "We do not take anything. We seize and hold it and file a case, and the court decides."

Laying aside for a moment the rhetorical difference between "taking" and "seizing" (the primary feature of both being that a person is deprived of property without due process of law), Mr. Moreo's comment isn't even true. In at least one case, a person was able to prove at least half of the cash seized by Nevada Highway Patrol troopers was legitimate, but a judge refused to return any of his money.

By the way, police and prosecutors have a perverse incentive to continue the practice of asset seizure, inasmuch as seized funds are used by law enforcement agencies for their own purposes, or for victim restitution. Ms. Chen found that millions in forfeiture funds were used by Nevada law enforcement agencies to buy weapons, radio systems and other equipment, vehicles and the like.

But wait, there's more. Mr. Moreo said that making forfeiture victims prove in court that their money is innocent separates innocent people from drug couriers.

"A lot of times, they will just walk away from the money. They will just say, 'I have no idea where it came from, you can have it,'" Mr. Moreo said.

This is as outrageous as those who say that only the guilty have anything to fear from government surveillance of cellular telephone data. Our system is not based on the innocent proving their lack of guilt. It's based on the government bearing the burden of proof in all criminal matters.

Nevada's Legislature needs to take a serious look at reforming asset forfeiture. A good place to start: Assets may not be retained except in cases where a person is convicted of a crime, and it is proven in court the money was the fruit of a criminal enterprise. And even then, the funds should be deposited in the state or county general fund, not used by the agency that seized the money in the first place.