LITTLE ROCK, Ark. (Jan. 27, 2021) – A bill introduced in the Arkansas Senate would reform the state’s asset forfeiture laws to prohibit the state from taking a person’s property without a criminal conviction in most situations. The bill would also close a loophole allowing state and local police to circumvent more stringent state asset forfeiture laws by passing cases off to the feds.

Sen. Alan Clark (R-Lonsdale) introduced Senate Bill 197 (SB197) on Jan. 25. In 2019, Arkansas enacted reforms requiring a conviction before proceeding with an asset forfeiture case under Arkansas’ controlled substances act. SB197 would expand the conviction requirement to all asset forfeiture cases and effectively end civil asset forfeiture in the state. The legislative intent included in SB197 declares:

“It is the intent of the General Assembly to consolidate, standardize, simplify, and to end the civil asset forfeiture and replace it with a criminal forfeiture process used by the state to seize and forfeit real property or personal property used in the commission of an offense.”

The Institute for Justice gave Arkansas forfeiture laws a D- grade, calling them “awful.”

When the 2019 reforms were passed, it was widely reported that the bill ended civil asset forfeiture. But that bill only addressed the process under the controlled substance act, requiring a conviction in drug cases before forfeiture.

SB197 includes important provisions that would opt Arkansas out of a federal asset forfeiture program in most cases. 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) that remains in effect today.

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.

SB197 would close the loophole with the following language.

A law enforcement agency shall not offer for adoption real property or personal property seized under state law to a United States Government agency for the purpose of forfeiture under the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, or other federal law unless the seized real property or personal property includes United States currency that exceeds five thousand dollars ($5,000).

Most forfeiture cases do not include cash over $5,000 and this language would close the loophole in most situations.

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.

NECESSARY

While some people believe the Supreme Court “ended asset forfeiture, its 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 “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.

WHAT’S NEXT

SB197 was referred to the Senate Judiciary Committee where it must pass by a majority vote before moving forward in the legislative process.


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