Tenth Amendment Center: Rhode Island Bill Takes on Asset Forfeiture, Would Close Federal Loophole

From Tenth Amendment Center

...from Tenth Amendment Center

PROVIDENCE, R.I. (Feb. 19, 2018) – A bill introduced in the Rhode Island House would reform the state’s asset forfeiture laws to prohibit the state from taking property without a criminal conviction. The legislation also takes on federal forfeiture programs by banning prosecutors from circumventing state laws by passing cases off to the feds in most situations.

Rep. Helder Cunha (D- Providence) and Rep. Carlos Tobon (D-Pawtucket) introduced House Bill 7640 (H7640) on Feb. 15. The legislation would reform Rhode Island law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture, and would completely end civil asset forfeiture in the state.

The Institute for Justice gave Rhode Island’s asset forfeiture laws a D- grade, calling them “awful.” Under current law, the state can take property even if a person is never found guilty of a crime, or sometimes even without filing charges.

Under the proposed law, asset forfeiture proceeds would go into the general fund after paying off prescribed expenses. Currently, Rhode Island law enforcement agencies can keep up to 90 percent of forfeiture money. This change would reduce the perverse policing for profit incentives in the current law.

Passing H7640 would also close a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. This is particularly important in light of a new policy directive issued last July by Attorney General Jeff Sessions for the Department of Justice (DOJ).

FEDERAL LOOPHOLE

A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption.The new DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.

Law enforcement agencies often bypass more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.

Until recently, California faced this situation.The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.

H7640 would close this loophole in most situations by effectively withdrawing from the federal program.

“No state or municipal law enforcement agency or prosecuting authority may enter into an agreement to transfer or refer seized property to a federal agency directly, indirectly, by adoption, through an intergovernmental joint taskforce or by other means for the purposes of forfeiture litigation unless the seized property includes United States currency in excess of one hundred thousand dollars ($100,000).”

The law would also direct all equitable sharing money above the cost of investigation and prosecution to the state general fund.

As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.

Why?

We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.

WHAT’S NEXT

H7640 was referred to the House Judiciary Committee where it must pass by a majority vote before moving forward in the legislative process.

Mike Maharrey
February 19, 2018 at 12:27PM