COLUMBIA, S.C. (Jan. 29, 2021) – On Thursday, a South Carolina House subcommittee held a hearing on a bill that would reform the state’s asset forfeiture laws and prohibit the state from taking a person’s property without a criminal conviction. The proposed law would also opt South Carolina out of a federal program that allows police to bypass more strict state asset forfeiture laws.

A bipartisan coalition of 19 representatives introduced House Bill 3619 (H3619) on Jan 12. The legislation would end civil asset forfeiture in the state and replace it with a criminal process requiring a conviction before prosecutors could proceed with forfeiture proceedings.

H3619 also address the policing for profit motive inherent in the current forfeiture process. Forfeiture proceeds would be deposited into a special fund after paying various expenses. The fund would distribute grants for specific items, including body cameras. training, community policing, and victim services. As it stands, 95 percent of forfeiture proceeds go to law enforcement, with 75 percent going to police agencies and 20 percent to prosecutors.

A similar bill (S70) has been introduced in the Senate.

On Thursday, a subcommittee of the House Judiciary Committee held a hearing on H3619. According to the Greenville News, a public defender, the leader of the South Carolina American Civil Liberties Union and a former state lawmaker all testified in support of the measure.

Under current South Carolina forfeiture procedures, the state can take a person’s property without even charging them with a crime. The Institute for Justice gave South Carolina a D- grade for its current forfeiture laws, saying, “South Carolina’s civil forfeiture laws offer very little protection for property owners.”

H3619 includes important provisions that would opt South Carolina out of a federal asset forfeiture program. 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.

H3619 would close the loophole with the following language.

“A law enforcement agency may not transfer a criminal investigation or forfeiture proceedings to the federal government for the predominate intention to circumvent the forfeiture provisions of this chapter nor may the agency refer, transfer, or otherwise relinquish possession of property seized under state law to a federal agency not involved in the initial investigation of a criminal offense for purposes of forfeiture.”

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

The subcommittee will have to pass H3619 in order to move forward to the full Judiciary Committee.


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