OKLAHOMA CITY (Nov. 6, 2015) – A bill up for consideration when the Oklahoma state legislature returns from recess in Feb. 2016 would reform asset forfeiture laws by prohibiting the state from taking property without a criminal conviction. But it leaves open a big loophole that would allow the practice to continue under federal forfeiture programs.
Introduced by Sen. Kyle Loveless (R-Oklahoma City) and Rep. Jon Echols (R-Oklahoma City), Senate Bill 838 (SB838) would completely eliminate civil asset forfeiture under state law and only allow forfeiture via criminal proceedings after prosecutors secure a criminal conviction.
SB838 would amend the Oklahoma state code 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.
SB838 also earmarks any monies received through the use of asset forfeiture for the general fund, eliminating the incentive for law enforcement to directly fund themselves through this practice or enter into federal partnerships regarding asset forfeiture.
The state of Oklahoma was given a terrible rating by the Institute for Justice for their restrictive civil asset forfeiture laws in 2010, primarily because “owners are presumed guilty and must contest forfeiture by proving they did not know property was being used illegally” and “law enforcement receives 100 percent of the proceeds from civil forfeiture.” SB838 would ban those practices immediately.
As currently drafted, SB838 leaves a loophole open that would make the proposed state reforms generally ineffective.
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 civil liberty protections and limits on the revenue they can collect by turning cases involving seized assets over to the feds. In return, state and local agencies get 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.
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. 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.
Although SB838 was originally introduced in May, the bill was not heard during this year’s legislative session. Due to this postponement, SB838 won’t be heard until at least Feb. 2016 when the legislature convenes again.