ALBANY, N.Y. (May 10, 2022) – On Monday, a New York Senate committee passed a bill that would reform the state’s asset forfeiture laws to require a criminal conviction and opt the state out of a federal asset forfeiture program known as “equitable sharing” in most cases.
Sen. Jamaal Bailey (D) introduced Senate Bill 6440 (S6440) in 2021 and the bill carried over to the 2022 session. The legislation would replace the state’s civil asset forfeiture process with a criminal process. The proposed law would require a criminal conviction before prosecutors could proceed with asset forfeiture in most cases.
S6440 would also address the “policing for profit” motive inherent in civil asset forfeiture by requiring the state treasurer to deposit forfeiture proceeds into the general fund after payment of specific allowable expenses. Under current law, police can keep up to 60 percent of forfeiture proceeds in New York.
Passage of the bill would effectively opt New York 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.
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.
S6440 directly addresses the federal equitable sharing program with the following language:
A law enforcement agency shall not offer for adoption any property seized under state law, to a federal agency for the purpose of forfeiture under the federal Controlled Substances Act, or other federal law unless such seized property includes United States currency that exceeds twenty thousand dollars.
§ 480.165 Limitation on state and federal joint task forces.
1. Except as permitted under subdivision two of this section, a joint task force of a law enforcement agency and a federal agency shall transfer seized property to the prosecuting authority for forfeiture litigation under this article.
2. Such joint task force may transfer seized property to the federal Department of Justice for forfeiture under federal law if such seized property includes United States currency that exceeds twenty thousand dollars.
3. A law enforcement agency shall be prohibited from accepting payment or distribution of any kind from the federal government if the federal government requires seized property that includes United States currency less than twenty thousand dollars, as established under subdivision two of this section, be transferred to the federal government for forfeiture under federal law.
Most forfeitures fall below the $20,000 in currency 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.
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.
S6440 will now move to the Senate Finance Committee for further consideration. It must get a hearing and pass by a majority vote before moving forward in the legislative process.
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