TRENTON, N.J. (Jan. 16, 2020) – On Monday, New Jersey Gov. Phil Murphy signed a bill that imposes strict reporting requirements for all asset forfeitures in the state. This legislation takes a first step that could lead to substantive reforms, including closing a federal loophole that allows police to bypass strict state asset forfeiture laws.
Sen. Shirley Truner (D-Ewing) introduced Senate Bill 1963 (S1963) with a bipartisan coalition of three cosponsors in February. The new law requires law enforcement agencies to report extensive details about asset forfeitures in the state including the type and value of property seized and whether someone was charged with a crime when the property was forfeited. It also requires agencies to report all cases adopted by the federal government. The law requires that information to be compiled on a publicly available website.
While passage of S1963 doesn’t reform New Jersey asset forfeiture laws, it sets a foundation to do so in the future. By increasing transparency, the legislation allows New Jerseyites 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 Tenth Amendment Center is part of a coalition of seven organizations that supported passage. A letter released by the coalition paints a bleak picture of current forfeiture law in the Garden State.
“Under civil forfeiture, law enforcement agencies can seize and then take title to cash, cars, and other valuables without charging anyone with—let alone convicting them of—a crime. Compounding these problems, New Jersey law does not require any forfeiture reporting. Instead, the Office of the Attorney General governs the reporting process through rulemaking and requires only the most basic details to be reported. And even those basic details are difficult to track down—the AG’s office does not compile aggregate reports, so interested parties must file lengthy and expensive Open Public Records Act requests to obtain the information. For example, the Institute for Justice recently requested from the AG’s office two years of counties’ and municipalities’ forfeiture reports, which cost IJ over $5,000 and took over 18 months to obtain.”
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 last July by Attorney General Jeff Sessions for the Department of Justice (DOJ).
The coalition letter specifically addressed this issue.
“Finally, even when state legislatures impose restrictions on civil asset forfeiture, law enforcement may skirt state law by forfeiting property federally—and still receive a share of the proceeds—through a process known as “federal equitable sharing.”
Another bill moving through the New Jersey legislature would reform the state asset forfeiture laws to require a conviction in many cases, but the loophole remains.
“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.
New Jersey 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.
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.