INDIANAPOLIS, Ind. (Jan 19, 2022) – A bill filed in the Indiana Senate would reform the state’s asset forfeiture laws to prohibit the state from taking a person’s property without a criminal conviction in most situations. Passage of the bill would also take a small step toward closing a federal loophole that allows police to circumvent more strict state forfeiture laws by passing cases off to the feds.
Sen. Phil Boots (R) filed Senate Bill 295 (SB295) on Jan. 10. The proposed law would require a criminal conviction before prosecutors could move forward with the forfeiture process in most cases. The legislation would also add protections for innocent owners.
Under current law, the state can seize property simply by establishing it was connected to a crime by “a preponderance of the evidence,” a very low legal bar. To win an innocent-owner claim, property owners bear the burden of proving their innocence in most cases, flipping due process on its head.
SB295 also includes important provisions that would take the first step toward opting Indiana 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.
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.
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.
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.
SB295 would prohibit police from transferring cases to a federal authority “if the property was not seized in connection with an investigation conducted by a joint federal-state task force.” Property seized by a joint task force could still be transferred to the feds.
According to the Institute for Justice, there’s no way of knowing how many federal adoptions occur outside of joint taskforces, but some likely do. That would end with the passage of SB295.
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.
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.
SB295 was referred to the Senate Judiciary Committee where it must receive a hearing and pass by a majority vote before moving forward in the legislative process.
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