CONCORD, N.H. (May 12, 2016) – Last week, a New Hampshire Senate committee passed a bill that represents an important first step to reform and restrict asset forfeiture, but bowed to law enforcement pressure and amended out sections that would have removed “policing for profit” incentives from state law. The move by the committee reveals the power and aggressiveness of the law enforcement lobby.
Rep. Dan McGuire (R-Merrimack), along with 10 bipartisan legislators, introduced House Bill 636 (HB636) in January. The legislation would reform New Hampshire law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture. Under the proposed law, prosecutors would also have to prove by clear and convincing evidence that the property was derived from, or used in, the commission of a crime. Under current law, the state can seize assets even if a person is never found guilty of a crime, or even arrested.
As passed by the House, HB636 would have also directed all asset forfeiture proceeds into the state general fund instead of law enforcement budgets. This would minimize the policing for profit incentives inherent in the current system. But as Valley News reports, the committee voted to remove this provision after law enforcement lobbyists applied heavy pressure. During a committee hearing, Lebanon Police Chief Richard Mello warned that diverting the money would “handcuff” his department.
“I don’t agree with the premise that we are doing policing for profit,” he said. Later he added, “By taking the money, it’s not going to stop the things that law enforcement do; it’s just going to handcuff us and handicap us as far as how we’re going to pay for it.”
But the amount of money law enforcement agencies actually bring in through state forfeiture represents a relatively small amount compared to the dollars that pour in through the federal Equitable Sharing Program.
The amount forfeited statewide under state law is about $50,000 to $60,000 annually, far less than the proceeds from seizures under federal law, which average $1 million each year.
The state law allocates 45 percent of the proceeds to agencies participating in a given seizure, another 45 to the state Department of Justice and 10 percent to the state Department of Health and Human Services.
Police receive a greater portion of the proceeds from federal seizures, which also tend to be larger in value than those made through state law, according to area chiefs.
Tenth Amendment Center founder and executive director Michael Boldin called law enforcement’s opposition to the bill “gross.”
“The bill doesn’t touch federal forfeiture. So law enforcement is vehemently opposed to something that would restrict, but not end, less than 5% of their take via forfeiture. It how bad these people are.”
Sen. David Pierce (D-Lebanon), one of the bill’s cosponsors actually sided with police. The only Senator on the committee to oppose removing the provisions was Sen. Jerry Little, (R-Weare.)
If the Senate ultimately passed HB636 as amended, it would have to go back to the House for concurrence, so there it remains possible to restore the stripped provisions.
The amount of money collected through federal forfeiture highlights a loophole remaining in HB636 that would allow state and local law enforcement to pass off forfeiture cases to the feds, thereby bypassing more stringent state law. But despite the loophole, sources close to the Tenth Amendment Center in New Hampshire call this a foundational first step, and the federal loophole is on their radar to address in 2017 if HB636 ultimately passes into law.
HB636 would represent a strong reform of New Hampshire asset forfeiture laws and go a long way toward protecting the rights of property owners, but the loophole ultimately needs to be closed. This would require amendment language or legislation in the future 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.”
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, New Hampshire needs to address the loophole to ensure police cannot circumvent the law in the future. Legislators can do so by adding the following language:
“A law enforcement agency or prosecuting authority may not enter into an agreement to transfer or refer seized property to a federal agency directly, indirectly, by adoption, through an intergovernmental joint taskforce or by other means for the purposes of forfeiture litigation and instead must refer the seized property to appropriate local or state prosecuting authorities for forfeiture litigation under this chapter unless the seized property includes U.S. currency in excess of $50,000.”
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. 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.
HB636 will now move on to the full Senate for further consideration.