LINCOLN, Neb. (April 14, 2016) – Yesterday, the Nebraska Senate gave final approval to a bill that 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.

Sen. Tommy Garrett (R-Bellevue) introduced Legislature Bill 1106 (LB1106) in January. The legislation would reform Nebraska 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 Senate passed LB1106 on Wednesday by a 38-8 vote. The bill now heads to Gov. Pete Ricketts desk for his signature. He has until Monday to sign or veto the legislation, or it will become law without his signature.

“Civil forfeiture is one of the most serious assaults on due process and private property rights in America today. By passing LB 1106, lawmakers will ensure that only convicted criminals—and not innocent Nebraskans—lose their property to forfeiture,” Institute for Justice Legislative Counsel Lee McGrath said.

ADDRESSES FEDERAL PROGRAMS

LB1106 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. The following language shuts the loophole:

No law enforcement agency or prosecuting authority of this state or its political subdivisions shall transfer or refer any money or property to a federal law enforcement authority or other federal agency by any means unless

(1) The money or property seized exceeds twenty-five thousand dollars in currency or value;

(2)  The  money  or  property  is  physically  seized  by  a  federal  agent who is employed by the federal government; or

(3)  The  person  from  whom  the  money  or  property  was  seized  is  the subject  of  a  federal  prosecution  or  the  facts  and  circumstances surrounding  the  money  or  property  seized  are  the  subject  of  a  federal prosecution.

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 starting with a state or local case, then transferring it to 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.

California prosecutors and law enforcement agencies have regularly utilized this loophole to get around strict state-level restrictions on forfeiture. According to a report by the Institute for Justice, Policing for Profit, between 2000 and 2013, the U.S. DOJ paid local and state agencies in Nebraska more than $48.3 million in equitable-sharing proceeds. “In 2013, out of all properties seized for equitable sharing in Nebraska, 78 percent were valued at under $25,000.”

In other words, if LB1106 becomes law, asset forfeiture without conviction will be ended for more than 78% of cases in the state.

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.

ACTION ITEM

If you live in Nebraska, contact Gov. Ricketts at 402-471-2244 and urge him to sign LB1106 into law.


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