Tenth Amendment Center: New Hampshire Asset Forfeiture Reporting Law Lacks Important Requirements

From Tenth Amendment Center

...from Tenth Amendment Center

CONCORD, N.H. (May 21, 2018) – Last week, New Hampshire Gov. Chris Sununu signed a bill into law requiring the state attorney general to produce an annual report detailing asset forfeitures in the state. The law takes a small step forward, but important provisions requiring reporting of federal asset forfeiture cases were stripped out of the legislation.

Sen. Harold French introduced Senate Bill 498 (SB498) earlier this year. As introduced, the legislation required the attorney general to produce a detailed annual report including specific information about every asset forfeiture case prosecuted in the state. The proposed law specifically required law enforcement agencies to report equitable sharing and the reason for proceeding under federal law in cases passed off to the federal government through an adoption process.

A Senate committee amended out all of the specific reporting requirements. As passed SB498 merely requires the attorney general to report “the type, approximate value, and disposition of the property seized, and the amount of any proceeds received or expended at the state and local levels. The report shall provide a categorized accounting of all proceeds expended.” The new law does not specifically require any reporting of equitable sharing or federal asset forfeiture cases prosecuted in New Hampshire.

French said the law as passed won’t have much practical effect.

“The original bill was changed so much it does virtually nothing except gives me a platform to build on next year,” he said.

Strict reporting requirements often take the first step toward asset forfeiture reform because they allow people to see the scope and impact of current policy. As the saying goes, sunlight is the best antiseptic. Transparency often creates the momentum needed to drive future change. As originally introduced, SB498 would have created that kind of transparency, but as passed, the law will need significant followup and the addition of specific reporting requirements.

Including federal asset forfeiture cases in these requirements will be particularly important, as they can set the stage to 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 significant in light of a 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.

Virginia could close this loophole in most situations by effectively withdrawing from the federal program. We recommend the following language.

1. A law enforcement agency or prosecuting authority may not 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 and instead must refer the seized property to appropriate local or state prosecuting authorities for forfeiture litigation under this chapter unless the seized property includes U.S. currency in excess of $100,000.

2. This paragraph preempts laws by township, municipal, county and other governments in the state which regulate civil and criminal forfeiture.

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

Mike Maharrey
May 21, 2018 at 11:33AM