HARTFORD, Conn. (July 19, 2017) – Last week, Connecticut Gov. Dannel Malloy signed a bill into law that significantly reforms the state’s asset forfeiture laws, but fails to close a loophole that allows police to circumvent more strict state laws by passing cases off to the feds.
The House Banking Committee Committee introduced House Bill 7146 (HB7146) earlier this year. The legislation reforms Connecticut’s asset forfeiture laws by requiring an arrest before police can seize property, and a criminal conviction before prosecutors can finalize forfeiture in most situations. Under the former law, the state could seize assets even if a person was never found guilty of a crime, or even charged.
The reformed process will still allow police to keep over 60 percent of asset forfeiture proceeds.
More concerning, HB7146 failed to address a federal loophole that could significantly limit the practical impact of these significant state reforms.
The loophole allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government under its Equitable Sharing forfeiture program.
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.
To ensure Connecticut law enforcement officers don’t continue to seize assets without a conviction, the legislature needs to follow up with a bill closing the loophole. The Institute of Justice recommends 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.
This paragraph preempts laws by township, municipal, county and other governments in the state which regulate civil and criminal forfeiture.
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.
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.
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