BOSTON, Mass. (May 28, 2019) – Two bills filed in the Massachusetts House would reform the state’s asset forfeiture laws to require a criminal conviction in most cases and also opt out of a federal program that allows state and local police to circumvent the more stringent state asset forfeiture process by passing cases off to the feds.
Rep. Lenny Mira (D-West Newbury) introduced House Bill 1522 (H1522) on Jan. 22. Rep. Jay Livingstone (D-Boston) introduced House Bill 3367 (H3367) on the same day. While the language differs, both laws would effectively end civil asset forfeiture in Massachusetts and replace it with a criminal process. Under the proposed laws, prosecutors would not be able to move forward with asset forfeiture proceedings without first obtaining a criminal conviction in most cases.
Both of these bills also address the policing for profit incentive in the current forfeiture process. Police departments would be eligible to have their investigatory expenses reimbursed but additional forfeiture proceeds would be deposited to the state general fund. As it stands, law enforcement agencies can keep up to 100 percent of forfeiture proceeds.
The Institute for Justice calls Massachusetts’ asset forfeiture laws “the worst in the country.” As it stands, police can take an individual’s property without even charging them with a crime.
NECESSARY
While some people believe the Supreme Court “ended asset forfeiture,” the recent opinion in Timbs v. Indiana ended nothing. Without further action, civil asset forfeiture remains. Additionally, as law professor Ilya Somin noted, the Court left an important issue unresolved. What exactly counts as an “excessive” in the civil forfeiture context?
“That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal.”
Going forward, opponents of civil asset forfeiture could wait and see how lower federal courts will address this “over the next few years,” or they can do what a number of states have already taken steps to do, end the practice on a state level, and opt out of the federal equitable sharing program as well.
FEDERAL LOOPHOLE
Passage of either H1522 or H3367 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.
Both bills feature language to close the loophole and opt out of this federal program in most situations.
The proposed laws would also require all funds paid by the federal government to be deposited in the general fund.
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.
WHAT’S NEXT
H1522 and H3367 were both referred to the Joint Judiciary Committee where it must pass by a majority vote before moving forward in the legislative process.
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