AUGUSTA, Maine (July 15, 2021) – On Tuesday, a Maine bill that reforms the state’s asset forfeiture laws to require a criminal conviction and opts the state out of a federal asset forfeiture program known as “equitable sharing” became law without the governor’s signature.

Rep. William Faulkingham (R-Winter Harbor) along with two fellow Republicans, four Democrats and a Libertarian, introduced House Bill 1521 (LD1521) on April 15. The new law repealed the state’s civil forfeiture process and implemented a criminal procedure that requires a conviction before prosecutors can proceed with asset forfeiture in most cases.

“It’s a very simple concept; you don’t lose your property unless you used it in the commission of a crime, or knowingly allowed someone else to use it in the commission of a crime,” bill sponsor Rep. Billy Bob Faulkingham wrote in May testimony supporting his bill. “It is time to end this workaround that makes people prove innocence, rather than prosecutors proving guilt. This is one of the founding principles of our country.”

The law also effectively opts Maine 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.

On June 3, both the House and the Senate gave final approval to LD1521. Gov. Janet Mills took no action within her allotted time and it became law without her signature on June 13.

The Institute for Justice gives Maine’s current asset forfeiture process a B+ grade because none of the proceeds go to law enforcement. But the IJ notes that “Maine’s law grade could be even higher if not for the state’s low standard of proof. Law enforcement may forfeit property by showing by a mere preponderance of the evidence that it is tied to a crime. In most cases, Maine law also puts the burden on innocent owners to prove that they had nothing to do with the alleged criminal activity with which their property has been associated.” The new law will correct many of the problems in the current process.

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.

According to the IJ, Maine agencies forfeited a little more than $3 million under state law between 2009 and 2019. Meanwhile, Maine law enforcement agencies collected more than $14 million through equitable sharing over the past two decades.

LD1521 directly addresses the federal equitable sharing program with the following language:

Unless seized property under this section includes United States currency in excess of $100,000, a law enforcement agency, prosecuting authority, state agency, county or municipality may not enter into an agreement to transfer or refer property seized under this section to a federal agency directly, indirectly, through adoption, through an intergovernmental joint task force or by other means that circumvent the provisions of this section.

The vast majority of forfeiture cases fall below the $100,000 threshold. In Maine, half of all cash forfeitures were under $1,670.

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.


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