NASHVILLE, Tenn. (Oct. 4, 2019) – Later this month, the Tennesse legislature’s Civil Asset Forfeiture Task Force will hold a hearing on asset forfeiture reform in the Volunteer State.
Rep. Martin Daniel (R-Knoxville) has spearheaded efforts to reform Tennessee’s asset forfeiture laws to require a conviction before prosecutors can permanently seize a person’s property. Last year, Daniel sponsored a House bill that would have created a process to determine whether there is probable cause before proceeding with asset forfeiture and close a loophole allowing state and local police to circumvent stringent state asset forfeiture laws by passing cases off to the feds.
In 2018, the Tennesee legislature passed modest reforms to the state asset forfeiture process, but it rejected more strict restrictions on the process under intense law enforcement opposition.
The law now requires law enforcement agencies to provide formal notification within five days of a property seizure or of a forfeiture-warrant hearing. Authorities must provide notice whether or not the owner was present at the time the property was taken. The bill also requires the state to pay attorney fees if a person proves police wrongfully seized their property. Additionally, the stipulates that merely possessing large amounts of cash is not considered a crime.
Passage of the 2018 law created a foundation for activists in Tennessee to build on, and they have continued to push the issue forward. Those driving for reforms have set up a petition to support efforts. You can sign it HERE.
The Institute for Justice gives Tennessee forfeiture laws a D- and calls them “appalling.” Law enforcement only needs to tie property to a crime by a preponderance of the evidence – an extremely low legal standard – in order to forfeit it. Police can seize property without a conviction or even filing charges against the owner.
Any asset forfeiture reforms in Tennessee should include language 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
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.
The bill sponsored by Daniel last session included language that would close the loophole in most situations.
A local or state law enforcement agency, including a judicial district drug task force, 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, compiled in 21 U.S.C. § 801 et seq.
A local or state law enforcement agency, including a judicial district drug task force, or participant in a joint task force or other multijurisdictional collaboration with the federal government shall not accept payment of any kind or distribution of forfeiture proceeds resulting from a joint task force or other multijurisdictional collaboration unless the aggregate net equity value of the property and currency seized in a case exceeds one hundred thousand dollars ($100,000), excluding the value of contraband.
Very few cases exceed the $100,000 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.
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
The Civil Asset Forfeiture Task Force hearing will take place Tuesday, Oct. 29, at Cordell Hull Building (425 5th Avenue North) on the 1st floor, starting at 9 a.m. CST.
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