AUGUSTA, Maine (May 17, 2017) – The Maine legislature came together in a rare display of bipartisanship to kill a bill that would have reformed the state’s asset forfeiture laws. The legislation also took on federal forfeiture programs by banning prosecutors from circumventing state laws by passing cases off to the feds in most situations.
Sen. Eric Brakey (R-Androscoggin), with a bipartisan coalition of eight cosponsors, introduced Senate Bill 888 (LD888) on March 7. The legislation would have reformed Maine 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 charged.
The bill would have also improve transparency by requiring the Department of Public Safety to post records of forfeited property on a publicly accessible website.
The joint Committee on Criminal Justice and Public Safety issued a divided report with 11 member voting “ought not pass” and only two member voting for the bill. On April 9, the Senate voted 24-10 to accept the majority ought not pass report. The House concurred two days later, sealing the LD888’s fate.
ADDRESSES FEDERAL PROGRAMS
LD888 also would have 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. The proposed law would have explicitly prohibited this practice in most cases.
Unless the seized property includes United States currency in excess of $100,000, a law enforcement agency, prosecuting authority, state agency, county or municipality may not enter into an agreement to transfer or refer property seized under this section to a federal agency directly, indirectly, through adoption, through an intergovernmental joint task force or by other means that circumvent the provisions of this section.
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.
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. During the 2016 legislative session, the state closed the loophole.
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.
