MONTGOMERY, Ala. (June 24, 2019) – Last week, Alabama Gov. Kay Ivey signed a bill into law imposing strict reporting requirements for all asset forfeitures in the state. This legislation takes the first step that could lead to substantive reforms, including closing a federal loophole that allows police to bypass more strict state asset forfeiture laws.

Sen. Arthur Orr (R-Decatur) sponsored Senate Bill 191 (SB191). The new law requires Alabama law enforcement agencies to submit detailed reports on every forfeiture in the state, including information on whether there were any arrests in connection with the seizure, the disposition of cases, and how asset forfeiture proceeds were disbursed. The legislation specifically directs the Criminal Justice Information Center Commission to establish rules for reporting asset forfeiture cases in cooperation with the federal government and when an Alabama law enforcement agency receives equitable sharing proceeds from a federal forfeiture case.

The Senate passed SB191 by a 33-0 vote. The House approved the measure 102-0. With Ivey’s signature, the reporting requirements went into immediate effect.

While passage of SB191 doesn’t reform Alabama asset forfeiture laws, it sets a foundation to do so in the future. By increasing transparency, the legislation allows Alabamans 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 requirement to report all cases adopted by the federal government 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 in July 2017 by then-Attorney General Jeff Sessions for the Department of Justice (DOJ).

FEDERAL LOOPHOLE

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.

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

A local, county or state law enforcement agency shall not refer, transfer or otherwise relinquish possession of property seized under state law to a federal agency by way of adoption of the seized property or other means by the federal agency for the purpose of the property’s forfeiture under the federal Controlled Substances Act, Public Law 91 513-Oct. 27, 1970.under the federal Controlled Substances Act or other federal law.
In a case in which the aggregate net equity value of the property and currency seized has a value of $50,000 or less, excluding the value of contraband, a local, county or state law enforcement agency or participant in a joint task force or other multijurisdictional collaboration with the federal government (agency) shall transfer responsibility for the seized property to the state prosecuting authority for forfeiture under state law.
If the federal government prohibits the transfer of seized property and currency to the state prosecuting authority as required by paragraph (1) and instead requires the property be transferred to the federal government for forfeiture under federal law, the agency is prohibited from accepting payment of any kind or distribution of forfeiture proceeds from the federal government.

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.


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