CONCORD, NH (Nov. 17) – Last week, a New Hampshire House committee passed a bill to reform and restrict civil asset forfeiture. But remaining in the bill is a loophole that would allow law enforcement to work with the feds to skirt more stringent state laws.
Introduced by Rep. Dan McGuire (R-Merrimack) along with ten bipartisan legislators, House Bill 636 (HB636) would completely eliminate civil asset forfeiture under state law and only allow forfeiture via criminal proceedings after prosecutors secure a criminal conviction. It passed in the House Judiciary Committee on Nov. 12 by a 14-5 vote.
HB636 would require the state to produce “clear and convincing evidence” before a forfeiture is allowed. In addition, innocent owners of property would have their possessions returned “unless the alleged innocent owner thereof was a consenting party to the crime” as long as they filed a claim within 10 days. Forfeited money and auction proceeds would be used to “pay all outstanding recorded liens on the forfeited property, then to… pay reasonable non-personnel expenses, with all remaining funds to be deposited into the state’s general fund.”
The House Judiciary Committee amended HB636 before ultimately passing the bill. The amendments changed language to earmark forfeiture funds obtained within drug cases from a “drug forfeiture fund” to the general fund. This removes forfeiture-related proceeds from directly funding law enforcement, which has been one of the most abusive practices that has proliferated asset forfeitures nationwide.
The state of New Hampshire was given a terrible rating by the Institute for Justice for their civil asset forfeiture laws in 2010, primarily because “the burden rests on [the property owner] to raise an innocent owner defense, effectively making [them] guilty until proven innocent” and “law enforcement has a profit motive to pursue forfeitures because they directly keep 45 percent of the proceeds.” HB636 would ban those practices immediately.
FEDERAL LOOPHOLE
As currently drafted, however, HB636 leaves a loophole open that would make the proposed state reforms generally ineffective in practice.
The bill needs to include amendment language to stop state and local law enforcement from turning cases over to the federal government, thereby circumventing any restrictions placed on asset forfeiture at the state level.
This very scenario plays out frequently in states with strong asset forfeiture laws like California. Police simply avoid such restrictions by turning cases involving seized assets over to the feds. In return, state and local agencies get up to 80 percent of the proceeds from forfeited assets back through the Federal “Equitable Sharing Program.”
Simple language can close this loophole.
“A law enforcement agency or prosecuting authority may not directly or indirectly transfer seized property to any federal law enforcement authority or other federal agency unless the value of the seized property exceeds $50,000, excluding the potential value of the sale of contraband.”
As the Tenth Amendment Center previously reported the federal government has inserted itself into the California’s asset forfeiture debate. 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.
STATES PUSH BACK
States are rapidly taking notice and passing reforms to halt this abusive practice. 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.
Now that HB636 passed the House Judiciary Committee, it is set to receive a full vote in the state House.
