RALEIGH, N.C. (April 27, 2021) – A bill introduced in the North Carolina House would limit the state’s participation in a federal program that allows local police to circumvent stringent state asset forfeiture laws by passing cases off to the feds.
A coalition of 13 Democrats introduced House Bill 670 (H670) on April 22. The proposed law would prohibit North Carolina law enforcement agencies from transferring seized property to a federal agency by way of adoption or other means for the purpose of the property’s forfeiture under federal law and from accepting payment of any kind or distribution of forfeiture proceeds resulting from a joint task force or other multijurisdictional collaboration with the federal government if either of two conditions applies.
- There is no criminal conviction
- The value of the seized property is $5,000 or less
In other words, North Carolina law enforcement would be barred from transferring seized property to the feds without a conviction, and even with a conviction if the forfeiture amount is $5,000 or less.
Many forfeitures take place without any criminal conviction and a surprising number don’t meet the $5,000 threshold. According to a 2020 study, the median forfeiture amount averaged $1,276 across the 21 states where usable data was obtainable. In most of those states, half of the cash seizures fell below $1,000.
In effect, H670 would partially withdraw North Carolina from the federal program known as equitable sharing. 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.
NECESSARY
While some people believe the Supreme Court “ended asset forfeiture,” the recent 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.
IN EFFECT
North Carolina has some of the best state-level forfeiture restrictions in the country, according to the Institute for Justice. The state requires a criminal conviction before prosecutors can proceed with forfeiture, and law enforcement agencies don’t get a cut of the proceeds. But federal asset forfeiture standards are much lower. As a result, state and local police often pass cases to the feds to avoid the more stringent state laws.
The situation in California was similar until recently. The Golden State state also has some of the strongest state-level restrictions on civil asset forfeiture in the country, but until the state closed the loophole, law enforcement agencies would often bypass the state restrictions by partnering with the federal government through the equitable sharing asset forfeiture program.
Under these arrangements, state officials can simply hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds—even when state law banned or limited the practice. 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. During the 2016 legislative session, the state closed the loophole.
North Carolina ranked 7th among the states with the highest level of federal forfeiture. Passage of H670 would close the loophole and significantly increase protections for North Carolinian property owners.
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
At the time of this report, H670 had not been referred to a committee. Once it receives a committee assignment, it must pass by a majority vote before moving forward in the legislative process.
