New Mexico outlaws civil asset forfeiture, aka “Policing for profit”

SANTA FE, NM—Today, Governor Susana Martinez signed HB 560 into law, ending the practice of civil asset forfeiture in New Mexico. Civil asset forfeiture, also known as “policing for profit,” allows law enforcement officers to seize personal property without ever charging—much less convicting—a person with a crime. Property seized through this process often finds its way into the department’s own coffers. HB 560, introduced by NM Rep. Zachary Cook and passed unanimously in the legislature, replaces civil asset forfeiture with criminal forfeiture, which requires a conviction of a person as a prerequisite to losing property tied to a crime. The new law means that New Mexico now has the strongest protections against wrongful asset seizures in the country.

“This is a good day for the Bill of Rights,” said ACLU-NM Executive Director Peter Simonson. “For years police could seize people’s cash, cars, and houses without even accusing anyone of a crime. Today, we have ended this unfair practice in New Mexico and replaced it with a model that is just and constitutional.”
“With this law, New Mexico leads the nation in protecting the property rights of innocent Americans,” said Paul Gessing, President of the Rio Grande Foundation. “Convicted criminals will still see the fruits of their crime confiscated by the state, but innocent New Mexicans can now rest easy knowing that their property will never be seized by police without proper due process.”

“New Mexico has succeeded today in reigning in one of the worst excesses of the drug war,” said Emily Kaltenbach, State Director for Drug Policy Alliance’s New Mexico office “Like other drug war programs, civil asset forfeiture is disproportionately used against poor people of color who cannot afford to hire lawyers to get their property back. This law is an important step towards repairing some of the damage the drug war has inflicted upon our society and system of justice.”

“New Mexico has shown that ending policing for profit is a true bipartisan issue with broad public support,” said Lee McGrath, Legislative Counsel for the Institute of Justice. “America is ready to end civil asset forfeiture, a practice which is not in line with our values or constitution. This law shows that we can be tough on crime without stripping property away from innocent Americans.”

Bipartisan legislation has already been introduced in both houses of Congress that would dramatically reform federal civil asset forfeiture laws. The Fifth Amendment Integrity Restoration (FAIR) Act has been introduced in the Senate by Sen. Rand Paul (R-KY), Sen. Angus King (I-ME) and Sen. Mike Lee (R-UT). In the House, Rep. Tim Walberg (R-MI), Rep. Scott Garrett (R-NJ), Rep. Tony Cárdenas (D-CA), Rep. Keith Ellison (D-MN) and Rep. Tom McClintock (R-CA) introduced an identical version of the FAIR Act.
 

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Last week, the politicians who run the State of Indiana loaded a gun, aimed it at their own foot, and pulled the trigger—and then limped around acting shocked that they had shot themselves in the foot.

I’m talking, of course, about the new Religious Freedom Restoration Act (RFRA) that Indiana Governor Mike Pence recently signed into law that would essentially legalize discrimination against lesbian, gay, bisexual and transgender (LGBT) people. The backlash was swift and severe. Fair minded Hoosiers and others from around the nation reacted with outrage and called on the legislature to rewrite the law in a way that wouldn’t give businesses carte blanche to discriminate against customers based upon their sexual orientation.

Many businesses—including giants such NASCAR and Apple Inc.—registered their disapproval with the state government, and several major events and conventions announced that they would withdraw their business from the state in protest.

Reeling from the harsh criticism and scrambling to stop the hemorrhage of business and tourism revenue, Governor Pence pointed to the fact that the federal government has a “Religious Freedom Restoration Act” as well as 19 other states, including New Mexico. But despite sharing the same name, Indiana’s RFRA has distinct and important differences that make it a very different law than the ones passed by the federal government and New Mexico.

In short, the federal law and the New Mexico RFRA protect against the government infringing on the religious beliefs and practices of individuals. In contrast, the Indiana law is written to empower private businesses to use religion as a basis for discrimination. It’s apples and oranges. And Governor Pence is trying to convince us that the orange he’s holding is really an apple.

Does the language in Indiana’s law admit outright that its intent is to enable discrimination? No, but Garrett Epps, a constitutional law professor at the University of Baltimore described Indiana’s law in this way in his recent article for The Atlantic:

“Of all the state “religious freedom” laws I have read, this new statute hints most strongly that it is there to be used as a means of excluding gays and same-sex couples from accessing employment, housing, and public accommodations on the same terms as other people. True, there is no actual language that says, All businesses wishing to discriminate in employment, housing, and public accommodations on the basis of sexual orientation, please check this “religious objection” box. But, as Henry David Thoreau once wrote, ‘Some circumstantial evidence is very strong, as when you find a trout in the milk.’”

Even though our state law shares a name with the Indiana law, New Mexicans should rest easy in the knowledge that our RFRA does not enable discrimination. In fact, we have longstanding laws that explicitly prohibit discriminating against people based on sexual orientation or identity—just like we have laws that prohibit discrimination based on race, sex, or disability. Our state takes pride in its diversity, and our laws reflect that. We may not all feel the same way about gay couples, but we can agree that it is important to treat people fairly, with respect, and as we would want to be treated ourselves.

Religious beliefs are an important part of life for many New Mexicans, and everyone has the right to practice their religion free from undue government interference. But no one’s religious beliefs make it okay to break the law by discriminating against others. That’s not how we treat people in New Mexico. Hopefully Indiana will soon make things right and fix the language in their law that enables discrimination. But until then, they should refrain from comparing their orange to our apple.

Thanks in part to the hundreds of emails sent by supporters like you, HB 560, the bill to end the unfair practice of civil asset forfeiture — aka "policing for profit" — passed the New Mexico legislature unanimously with only hours to spare. This is an incredible achievement — but it's not over yet. Governor Martinez still needs to sign this bipartisan bill before it can become law.

Now is the time to make your voice heard. Ask Governor Martinez to sign HB 560 so that we can protect innocent people from having their property seized by police.

If you're just now hearing about civil asset forfeiture, it may shock you to know that police departments can seize any property they suspect of being involved in a crime — cash, cars, even your home — and use it to fund their own agencies. They don't even have to charge you with a crime, much less convict you.

HB 560 is still tough on crime, allowing law enforcement to seize assets of convicted criminals, but it protects innocent New Mexicans from having their property taken without due process.

We live in a time of great political partisanship, but this is a civil liberties issue that both progressives and conservatives are united on. Every single legislator in both the New Mexico House and Senate threw their full support behind this bill, and today we're asking you to help us cross the finish line by asking Governor Martinez to sign this bipartisan bill into law.

Follow the link to ask Governor Martinez to sign this important legislation into law!