By Phil Smith
Civil asset forfeiture — the police seizing cash or property from people without first obtaining a criminal conviction — rankles Americans’ sense of fundamental fairness, and legislators around the country have been picking up on that. According to the Institute for Justice, 37 states have reformed their civil forfeiture laws since 2014, although only four — Maine, Nebraska, New Mexico, and North Carolina — have entirely abolished the practice.
Banning civil forfeiture is one thing; getting law enforcement to actually abide by state-level bans is another, primarily because there is a loophole, the federal Equitable Sharing program which allows prosecutors to hand cases off to the federal government to prosecute. The feds then share as much as 80 percent of the proceeds of the seizure with the local law enforcement entity. (Joint task force busts also allow state and local police to tap into equitable sharing.)
And the feds are pursuing asset forfeiture aggressively. Then-Attorney General Jeff Sessions issued a July 2017 policy directive directing federal prosecutors to ramp up seizures with or without a criminal conviction and even in states where civil forfeiture is banned. That Trump-era policy remains in effect to this day.
Eight states — Arizona, California, Colorado, Delaware, Maine, Maryland, Nebraska, New Mexico, and Ohio — have passed legislation aimed at shutting down equitable sharing schemes.
This year, both the number of states banning civil asset forfeiture and the number of states taking aim at the equitable sharing end-run around state laws could increase, with pushes going on in several states. Here are the states where civil asset forfeiture reform bills are in the works (with a tip of the hat to the 10th Amendment Center):
Three House Republicans have filed House Bill 1086, which would bar civil asset forfeiture and instead require a criminal conviction before forfeiture could proceed. It also addresses the “policing for profit” motive for asset seizures by sending half of all proceeds to the general fund of the governmental body with authority over the seizing law enforcement agency, a quarter to a behavioral health fund, and a quarter to a law enforcement grant fund. Currently, seizing agencies can keep up to half the funds, with another 25 percent going to the law enforcement grant fund. The bill also removes the state from the federal equitable sharing program. The bill is currently before the House Judiciary Committee.
Filed by Rep. Dana Criswell (R), House Bill 622 would abolish civil asset forfeiture in the state and instead require a criminal conviction before prosecutors could proceed with asset forfeiture in most cases. The bill would also effectively get Mississippi out of the federal equitable sharing program and it would eliminate the “policing for profit” motive in civil asset forfeiture by requiring that forfeiture funds be deposited in the state’s general fund. Under current state law, law enforcement agencies can keep up to 100 percent of seized assets. The bill is currently before the House Judiciary B Committee.
GOP Reps. Dan McGuire and Rep. Daniel Popovici-Muller have filed House Bill 593, which would require a criminal conviction in most drug cases before asset forfeiture could proceed. (The state has a specific asset forfeiture process for drug offenses, which constitute the vast majority of seizures.) The bill also bars resort to the federal equitable sharing program to circumvent state law, except for a rather sizeable loophole allowing it for seizures by joint drug task forces. The bill is currently before the House Criminal Justice and Public Safety Committee.
Assemblywoman Pamela Hunter (D) and eight Democratic cosponsors have filed Assembly Bill 641, which would end civil asset forfeiture in the state and allow asset forfeiture only if “prosecuting authority secures a conviction of a crime that authorizes the forfeiture of property and the prosecuting authority establishes by clear and convincing evidence the property is an instrumentality of or proceeds derived directly from the crime for which the state secured a conviction.” It would also require that forfeiture proceeds go into the general fund; under current law, police can keep up to 60 percent. And it would effectively exit the state from the federal equitable sharing program unless the amount seized was more than $20,000. Most forfeitures fall beneath that line. The bill is now before the Assembly Codes Committee.