(July 2, 2018) – Yesterday, laws went into effect in Kansas and Virginia implementing strict reporting requirements for all asset forfeitures, including cases passed off to the federal government. These new laws take a first step that could lead to more substantive reforms. 

The Kansas House Committee on Judiciary sponsored House Bill 2459 (HB2459). In Virginia, Sen. Mark Peake (R) and Sen. Adam Ebbin (D) sponsored Senate Bill 813 (SB813). Both of these new laws impose strict asset forfeiture reporting requirements on state and local law enforcement agencies.

The Kansas law requires law enforcement agencies to report the date, location, and value of asset seizures. They also must disclose whether or not criminal charges were filed. Additionally, police departments must keep a careful accounting of asset forfeiture proceeds, including information on how the money is spent. Kansas law enforcement agencies must now report any cases passed off to the federal government. The information will be available on a public website.

When the Institute for Justice tried to get asset forfeiture data from the Kansas State Police, it took five months and $500 to get the information. The lack of information hinders grassroots efforts to reform the asset forfeiture system. Police can effectively hide what they’re doing. When the IJ finally got the data from the KSP, it revealed that from 2009 to 2015, the agency spent $1.36 million in forfeiture proceeds on salaries and overtime, plus another $2.7 million on a new headquarters, according to reporting by Reason.com.

Clearly, law enforcement agencies in Kansas have plenty to hide.

In Virginia, the new law requires any state or local agency that receives property or a share of proceeds from asset forfeiture from the Virginia Department of Criminal Justice Services or from a federal asset forfeiture proceeding to produce a report including the offense on which the forfeiture is based, any criminal charges brought against the owner of the forfeited asset, the status of the criminal charge if any were filed. The law also requires the Department of Criminal Justice to produce an annual report compiling all of the information.

According to the Institute for Justice, Virginia has some of the worst asset forfeiture laws in the country.

“In order to forfeit property in Virginia, the government need only show by a preponderance of the evidence that property is related to criminal activity. Innocent owners also bear the burden of proving that they had nothing to do with the alleged criminal activity in which their property has been implicated. Worst of all, Virginia law provides a tempting incentive to seize property as it allows law enforcement to retain 100 percent of forfeiture proceeds: Participating agencies keep 90 percent of the bounty, while the balance goes to the state’s Department of Criminal Justice Services.”

Clearly, the Virginia asset forfeiture law is in need of reform.

While these new laws will not reform asset forfeiture processes in Kansas and Virginia, they do lay a foundation to do so in the future. By increasing transparency, these laws will allow Kansans and Virginians to actually see the reality of asset forfeiture. As the saying goes, sunlight is the best antiseptic. Transparency often creates the momentum needed to drive future change.

The inclusion information relating forfeiture cases passed off to the federal government in the reporting requirements could set the stage to close a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. This is particularly important in light of a policy directive issued last July by Attorney General Jeff Sessions for the Department of Justice (DOJ).

FEDERAL LOOPHOLE

A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. The new DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.

Law enforcement agencies often bypass more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.

Until recently, California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.

Kansas and Virginia could close this loophole in most situations by effectively withdrawing from the federal program. We recommend the following language.

1. 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 $100,000.

2. 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.

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

 

Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE

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