OLYMPIA, Wash. (Dec. 22, 2016) – A bill filed in the Washington House for the 2017 legislative session would reform the state’s asset forfeiture laws by prohibiting the state from taking property without a criminal conviction. But a loophole in the legislation would allow law enforcement to work with the feds to skirt the more stringent state law.

A bipartisan coalition of seven representatives prefiled House Bill 1016 (HB1016) on Dec. 5. The legislation would require a criminal conviction before prosecutors could proceed with asset forfeiture. It would also require the state to prove a direct link between the seized property and the criminal activity. As it stands now, Washington law enforcement officers can seize assets they suspect were involved in criminal activity without even making an arrest.

FEDERAL LOOPHOLE

As drafted, HB1016 leaves a gaping loophole that would render the reforms virtually ineffective in practice. The legislation 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.

For example, California previously had some of the strongest state-level restrictions on civil asset forfeiture in the country, but law enforcement would often bypass the state restrictions by partnering with a federal asset forfeiture program known as “equitable sharing.” Under these arrangements, state officials would simply hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds—even when state law banned or limited the practice. According to a report by the Institute for Justice, Policing for Profit, California ranked dead last of all states in the country between 2000 and 2013 as the worst offender. In other words, California law enforcement was passing off a lot of cases to the feds. During the 2016 legislative session, the state closed the loophole.

Simple language can close this loophole in HB1016.

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 inserted itself into the asset forfeiture debate in California. 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.

NEXT

HB1016 will be assigned to a committee once the regular session begins. It will have to pass by a majority vote before moving on in the legislative process.


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