SPRINGFIELD, Ill (Feb. 22, 2016) – An Illinois bill would reform 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. John Cavaletto (R-107th) introduced House Bill 5773 (HB5773) on Feb. 11. The legislation would reform Illinois law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture. Under current law, the state can seize assets even if a person is never found guilty of a crime, or even arrested.
The bills would also prohibit law enforcement agencies from keeping the proceeds from forfeitures. Under current law, law enforcement agencies keep 90% of asset forfeiture money. This provision curbs the policing for profit motive inherent in the current law.
ADDRESSES FEDERAL PROGRAMS
HB5773 also closes a loophole that allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government under its Equitable Sharing forfeiture program.
(a) No unit of State government may transfer a criminal investigation or proceeding to the federal government to circumvent State forfeiture law.
(b) For a State government unit to transfer a criminal investigation or proceeding that includes forfeiture to the federal government, a State court shall affirmatively find that:
(1) the suspected criminal activity giving rise to the forfeiture is interstate in nature and sufficiently complex to justify the transfer; or
(2) the seized property is forfeitable only as a violation of federal law.
In other words the legislation does not attempt to interfere with federally initiated forfeiture, but bans state and local police from passing off their cases to federal jurisdiction in most cases. The bill would also require any equitable sharing program money obtained through allowed transfers to be deposited in the state’s general fund.
The inclusion of provisions barring state and local law enforcement agencies from passing off cases to the feds is particularly important. In several states with strict asset forfeiture laws, prosecutors have done just that. By placing the case under federal jurisdiction, law enforcement can bypass the need for a conviction under state law and collect up to 80 percent of the proceeds from forfeited assets via the federal Equitable Sharing Program.
Late last December the U.S. Department of Justice suspended the Equitable Sharing Program due to budget cuts. But as the Washington Post reported, the suspension won’t likely be permanent.
“In its letter, the DOJ hints that it may be able to restart payments later: ‘By deferring equitable sharing payments now, we preserve our ability to resume equitable sharing payments at a later date should the budget picture improve.’ The DOJ hopes to ‘reinstate sharing distributions as soon as practical and financially feasible,’ the letter concludes.”
Even with the program suspension in place for now, the prohibition from passing off cases remains an important provision.
California prosecutors and law enforcement agencies have regularly utilized this loophole. 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.
Asset forfeiture laws incentivize “policing for profit” on one hand, and dubious state-federal partnerships on the other.
HB5773 was referred to Rules Committee where it will need to pass by a majority vote before moving on to the full House for further consideration.
Take action to support HB5773 at this link.
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