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State lawmakers propose overhaul of Delaware's civil asset forfeiture rules

Delaware Public Media

Delaware House Democrats introduced legislation last week to overhaul Delaware’s civil asset forfeiture laws, hoping to reign in a practice that has been widely criticized by civil liberties groups.

Civil asset forfeiture refers to the law enforcement practice of seizing property based on suspected connection to a crime, even if the owner isn’t arrested, charged or convicted before belongings are seized.

Between 2018 and 2021, Delaware’s DOJ reported more than 2,500 cases of civil asset forfeiture, including 170 cases in which the owners of the property weren't arrested.

Proceeds from the practice currently go to Delaware’s Special Law Enforcement Assistance Fund, which offers law enforcement agencies grants to pay for training or purchase equipment and software; that fund had more than $300,000 available at the start of March.

Last month, the board responsible for reviewing grant applications — which includes police chiefs from each county and the Delaware State Police, along with representatives from the DOJ — approved more than a dozen allocations to police departments across the state, including $15,000 for the Delaware State Police to acquire the controversial facial recognition software Clearview AI, which uses images scraped from the web to create a searchable database of faces.

While those whose assets are seized can turn to the courts for help, ACLU of Delaware Policy Director Javonne Rich says few people recover their property.

“When they balance the value of the property against what they’ve already spent, they often do give up and ultimately lose their property," she said. Only 4.4 percent of those whose property was seized through civil asset forfeiture in Delaware between 2018 and 2021 had property returned.

State Rep. Kim Williams’ bill would establish stricter guidelines for the practice and greater legislative oversight over the revenues from civil asset forfeiture. Rich says those include requiring a property owner to be convicted of a crime first– a reform previously proposed by former State Senator Colin Bonini in 2016.

“This bill coming in 2023 to do just that isn’t novel, but it is due time," she said. "But the scope of this bill is novel.”

The bill would also offer representation for people attempting to recover property, establish new protections for third-party individuals whose belongings are seized by law enforcement, shift the burden of proof from the individual whose assets were seized to the state and direct civil asset forfeiture revenue to Delaware's general fund rather than to the Special Law Enforcement Assistance Fund.

It also includes some cash-specific restrictions, including ending the presumption that money found in proximity to controlled substances is proceeds from drug sales and setting a minimum value of cash that can be seized.

Backers say the bill could also address racial disparities in the practice — roughly 70 percent of Delaware's civil asset forfeiture cases involve property seized from Black owners, and immigrant Delawareans are also disproportionately impacted by the practice.

The bill will receive its first hearing in the House Public Safety Committee.

Paul Kiefer comes to Delaware from Seattle, where he covered policing, prisons and public safety for the local news site PubliCola.