ANNAPOLIS, Md. (March 10, 2016) – A Maryland bill that would reform asset forfeiture laws to prohibit the state from taking property without a criminal conviction passed the Senate this week, but an amendment approved during the process creates a loophole that would allow law enforcement to work with the feds to skirt the more stringent state law.

Sen. Michael Hough (R-D4) introduced Senate Bill 161 (SB161) in January. The legislation would reform Maryland 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.

SB161 unanimously passed the Senate 46-0.

FEDERAL LOOPHOLE

As introduced, SB161 closed 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 LAW ENFORCEMENT AGENCY OR PROSECUTING AUTHORITY MAY NOT DIRECTLY OR INDIRECTLY TRANSFER
OR REFER SEIZED PROPERTY TO A FEDERAL GOVERNMENT AGENCY OR LAW ENFORCEMENT AUTHORITY FOR FORFEITURE UNDER FEDERAL LAW UNLESS

1. THE PROPERTY  INCLUDES  SEIZED  CASH  IN  EXCESS OF $50,000;

AND

2. A  CRIMINAL CASE RELATED TO THE SEIZURE IS PROSECUTED IN THE FEDERAL COURT SYSTEM UNDER FEDERAL LAW.

But the amendment added an additional mechanism opening up that loophole to allow transfer to federal authority if:

A STATE OR LOCAL LAW ENFORCEMENT AGENCY TRANSFERS THE PROPERTY TO A FEDERAL AUTHORITY UNDER A FEDERAL SEIZURE WARRANT ISSUED TO TAKE CUSTODY OF ASSETS ORIGINALLY SEIZED UNDER STATE LAW.

This provision would allow state law enforcement and feds to intentionally collaborate using the loophole to get federal warrants to bypass the state law. This is how it would likely play out in practice. Maryland law enforcement makes an arrest, but doesn’t have evidence for a conviction. They go to their federal partners and let them know the cannot move ahead with forfeiture. The feds go get a federal warrant and the forfeiture proceeds through the federal process without a conviction.

This provision would allow state and local law enforcement to circumvent the more stringent state law. One IJ lawyer put it this way, “I think the addition of the new section would basically gut the other requirements in the original language.”

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.

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.

Asset forfeiture laws incentivize “policing for profit” on one hand, and dubious state-federal partnerships on the other.

NEXT

SB161 will now move to the House for further consideration.

 


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