A few months ago, local media reported that the Oklahoma Highway Patrol is using a device that allows officers to electronically confiscate money on prepaid cards based on mere suspicion rather than a criminal conviction. The revelation underscores the importance of asset forfeiture reform, something the Oklahoma legislature unsuccessfully tried to do last session.
The state of Oklahoma was given a terrible rating by the Institute for Justice in 2010 for their restrictive civil asset forfeiture laws. With the new electronic asset forfeiture device, it has actually taken terrible to the next level.
According to News 9, the state is paying the device’s creator $5,000 for the software and scanners, as well as nearly 8 percent of all the seized cash. The device is known as ERAD, or Electronic Recovery and Access to Data machine. The state highway patrol currently has 16 in their possession.
Often, the federal government funds this type of technology, although in this case it appears all of the funding came from in-state.
Regardless of how law Oklahoma law enforcement funded the device, there is a simple way to limit its use – through reform of state asset forfeiture laws.
SB838 cosponsored by Sen. Kyle Loveless (R-Oklahoma City) and Rep. Jon Echols (R-Oklahoma City) would have made the use of this device illegal by requiring a criminal conviction before the state could take private property.
The bill would have amended Oklahoma state law to read as follows:
"Any property or thing of value of a person is subject to forfeiture if it is established by clear and convincing evidence that [it] was acquired by such person during the period of the violation of the Uniform Controlled Dangerous Substances Act or within a reasonable time after such period and there was no likely source for such property or thing of value other than the violation of the Uniform Controlled Dangerous Substances Act. A party to a forfeiture action under this section shall be entitled to a trial by jury. A trial related to a forfeiture action shall be held in a single proceeding with the trial of the related alleged crime unless the defendant moves to bifurcate the trial."
Unfortunately, the bill failed to muster so much as a public hearing. The bill also contained a loophole allowing asset forfeiture to occur if the cases were handed to the feds and placing it outside of the state’s jurisdiction.
This is exactly what happened in California, which has very strong asset forfeiture laws. Local law enforcement agencies turn the cases over to the feds in return for 80 percent of the proceeds from forfeited assets through the Federal Equitable Sharing Program.
It is imperative that Oklahomans stop this now, while it is still relatively new. They must put the pressure on their state lawmakers to introduce a new asset forfeiture reform bill. However, for it to be effective it must also close the federal loophole and prohibit asset forfeiture in all forms no matter the jurisdiction.
This kind of highway robbery will not stop here. Financial incentives will inspire other local law enforcement agencies to get their own ERADs. And it won’t just be limited to this one device. They’ll seek other devices that enable them to take property or money without charging anyone with a crime. As technology progresses, so will the means by which they steal from ordinary citizens. The companies that create these devices will also seek state contracts and fight to preserve the status quo.
States are rapidly taking notice and passing reforms to halt this abusive practice. The state of New Mexico enacted a law this year prohibiting the confiscation of property from suspects of a crime until after they are convicted. Montana passed a significant but less comprehensive reform plan tackling asset forfeiture this year as well.