CHARLESTON, W. Va. (Feb. 23, 2021) –  A bill introduced in the West Virginia House 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 West Virginia out of a federal program that allows police to bypass more strict state asset forfeiture laws.

Del. Mike Pushkin (D-Kanawha) introduced House Bill 2585 (HB2585) on Feb. 17. The legislation would end civil asset forfeiture in the state and replace it with a criminal forfeiture process requiring a conviction before prosecutors could proceed with forfeiture proceedings.

HB2585 also addresses the policing for profit motive inherent in the current forfeiture process. After settling any outstanding recorded liens on the forfeited property and paying “reasonable” law enforcement expenses as determined by the court, all forfeiture proceeds would be deposited in the state’s general fund. Under the current process, law enforcement agencies can keep 100 percent of forfeiture proceeds.

The Institute for Justice said, “West Virginia has some of the worst civil forfeiture laws in the country.” Last year, the state took the first step toward reforming its forfeiture process by implementing strict reporting requirements.

HB2585 includes important provisions that would opt West Virginia 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.

HB2585 would close the loophole with the following language.

Law-enforcement agency or prosecuting authority shall not directly or indirectly transfer seized property to any federal law-enforcement authority or other federal agency unless:

(1) The value of the seized property exceeds $50,000, excluding the potential value of the sale of contraband, or

(2) The seized property is not forfeitable under state law and may only be forfeited under federal law.

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

HB2585 was referred to the House Judiciary Committee where it must pass by a majority vote before moving forward in the legislative process.


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