Over three years after Gov. Susana Martinez signed historic legislation that abolished civil forfeiture, the practice continues in Albuquerque. The city has asserted that, as a city, it is not required to follow state law.
That remarkable legal theory is wearing thin: A recent opinion from U.S. District Judge James Browning found that state forfeiture law applies to Albuquerque. In other words, the city is not above the law.
Now Mayor Tim Keller is proposing to reform Albuquerque’s forfeiture program. In a recent editorial – “There’s a middle ground to booting DWI seizures” – this newspaper rightly applauded Mayor Keller’s resolve. The Albuquerque Journal has called for forfeiture reform in the past – including supporting the 2015 state law that abolished civil forfeiture – and the paper’s reporting has played an important role in uncovering the program’s flaws.
The editorial goes astray, however, when it suggests that Mayor Keller should aim for a “middle ground” to “strike a good balance between protecting the public and respecting property rights.” Respectfully, the New Mexico Legislature struck that balance when it unanimously passed the 2015 reforms. What Albuquerque needs to do is follow the law.
First, Albuquerque must stop using forfeiture revenue to fund its forfeiture program. Under the 2015 state law, forfeiture proceeds must be deposited in the general fund. Instead, Albuquerque uses money from selling forfeited cars to pay the salaries of officials who run its forfeiture program. That arrangement creates a perverse financial incentive to take cars from people who have done nothing wrong. One former city attorney for Las Cruces has even called forfeiture a “gold mine.”
Second, Albuquerque needs to stop taking cars owned by innocent people. The 2015 state law replaces civil forfeiture with criminal forfeiture, which allows property to be forfeited only after the owner is convicted of a crime. Most everyone agrees that forfeiture is appropriate to punish convicted criminals. But in Albuquerque, about half of the cars seized are taken from people who have never been accused, let alone convicted, of a crime.
Consider Arlene Harjo, the plaintiff in the case that produced Judge Browning’s recent decision. Arlene’s son asked to borrow her car for a trip to the gym, but that turned out to be a lie, and he was stopped for a DWI. Arlene was not accused of any crime. Yet the city took her car and tried to make her pay thousands of dollars to get it back. That kind of seizure needs to stop.
And what if a car is owned by two people, say a husband and wife, and just one is convicted of a DWI? In that case, state law still allows for forfeiture, but only if the government can show that the co-owner was aware of the offense. Under state law, an innocent wife cannot be punished for her husband’s misdeeds.
Legislators, law enforcement and the public understand drunken driving needs to be dealt with in a serious and concerted manner. But most also agree that it is wrong to scoop up innocent people in the process. State law strikes precisely that balance.
This newspaper’s recent editorial argues that cars should still be seized immediately after the owner is arrested, and only returned if the owner is not convicted. Fair enough; state law provides exactly that. However, state law also provides innocent owners an early opportunity to go to court to seek return of their car. With a depreciating asset like a car, upon which payments are due each month, justice delayed is justice denied. Albuquerque must provide the same procedure.
If Albuquerque continues to defy state law, it will face more years of litigation, and Judge Browning’s opinion puts the city on notice how that litigation is likely to go. The time to end civil forfeiture in Albuquerque is now.
Robert Everett Johnson and Brad Cates represent Arlene Harjo in her case challenging the city’s forfeiture program.