AUSTIN, Texas (Dec. 20, 2018) – A bill prefiled in the Texas Senate would moderately reform the state’s civil asset forfeiture laws and effectively close a federal loophole that allows police to circumvent more strict state forfeiture laws by passing cases off to the feds.
The legislation would make it more difficult for the state to seize assets by raising the burden of proof prosecutors must meet from “a preponderance of the evidence” to “clear and convincing evidence.” While the state would still be able to seize assets without a conviction, passage of SB247 would take a first step toward reforming a Texas asset forfeiture process that the Institute of Justice called “terrible.”
A third bill introduced in the Texas House would go further, effectively ending civil asset forfeiture in the state and replacing it with a criminal forfeiture process. Under the proposed law, the state could not complete the forfeiture process without a criminal conviction in virtually all cases.
While the reforms in SB247 would be more moderate, passage would take a big step toward closing 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 in July 2017 by then-Attorney General Jeff Sessions for the Department of Justice (DOJ).
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 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 can circumvent 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.
SB247 would close the loophole in most situations.
A law enforcement agency or attorney representing the state may not directly or indirectly transfer seized property to any federal law enforcement authority or other federal agency and may not coordinate with the authority or agency regarding seized property unless:
(1) the value of the seized property exceeds $50,000, excluding the value of any controlled substance; and
(2) the attorney representing the state determines that:
(A) the activity giving rise to the applicable investigation or seizure is interstate in nature and sufficiently complex to justify the transfer; or
(B) the seized property may only be forfeited under federal law.
The proposed law would also bar Texas law enforcement agencies and the Texas National Guard from participating, assisting, or cooperating in a forfeiture action brought by the federal government unless the value of the seized property subject to forfeiture exceeds $50,000.
The vast majority of forfeiture cases fall below that $50,000 threshold.
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.
SB247 will be officially introduced when the 2019 regular session begins on Jan. 8.
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