PROVIDENCE, R.I. (April 2, 2021) – A bill introduced in the Rhode Island Senate would reform the state’s asset forfeiture laws to require a criminal conviction in most cases, and also opt the state out of a federal asset forfeiture program known as “equitable sharing.”

A coalition of five Democrats introduced Senate Bill 732 (S732) on March 26. Under the proposed law, prosecutors would not be able to move forward with asset forfeiture proceedings without first obtaining a criminal conviction in most cases. The legislation would also raise the standard of proof necessary to complete forfeiture from a preponderance of evidence to clear and convincing evidence.

S732 also addresses the policing for profit incentives in the current forfeiture process. Under the proposed law, forfeiture proceeds would be deposited to the state general fund. As it stands, law enforcement agencies can keep up to 90 percent of forfeiture proceeds.

Passage of the bill would effectively opt Rhode Island out of a federal program that allows state and local police to get around more strict state asset forfeiture laws. 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.

According to the Institute for Justice, the current Rhode Island asset forfeiture process is “awful.”

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.

FEDERAL LOOPHOLE

A federal program known as “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 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 can circumvent 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.

S732 directly addresses the federal equitable sharing program.

(a) A law enforcement agency shall not directly or indirectly transfer seized property to a federal law enforcement authority or other federal agency unless:
(1) The value of the seized property exceeds fifty thousand dollars ($50,000), excluding the potential value of the sale of contraband; and
(2) The law enforcement agency determines that the criminal conduct that gave rise to the seizure is interstate in nature and sufficiently complex to justify the transfer of the property; or
(3) The seized property may only be forfeited under federal law.
(b) The law enforcement agency shall not transfer property to the federal government if the transfer would circumvent the protections of the forfeiture act that would otherwise be available to a putative interest holder in the property.

The vast majority of forfeiture cases fall below the $50,000 threshold.

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

S732 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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