DENVER, Colo. (Jan. 24, 2023) – A bill introduced in the Colorado House would end civil asset forfeiture in the state and replace it with a criminal process. Passage would also further opt the state out of a program that allows police to circumvent more strict state forfeiture laws by passing cases off to the feds.

A coalition of three Republicans introduced House Bill 1086 (HB1086) on Jan. 19. The legislation would replace the state’s civil asset forfeiture process with a criminal process requiring a criminal conviction before prosecutors could proceed with asset forfeiture in most cases.

The bill also addresses the “policing for profit” motive inherent in civil asset forfeiture by requiring the state treasurer to deposit 50 percent of forfeiture proceeds into the general fund of the governmental body with authority over the seizing agency after payment of specific allowable expenses. Twenty-five percent would go to a behavioral health fund and the remaining proceeds would go to a law enforcement grant fund. Under the current law, police departments can keep up to 50 percent of forfeiture proceeds with another 25 percent going to the law enforcement grant fund.

The passage of HB1086 would further opt Colorado 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.

HB1086 builds on previous forfeiture reforms. In 2017, Colorado imposed strict reporting requirements on asset forfeiture in the state and it expanded those requirements in 2018. This kind of transparency often creates the momentum needed to drive future change.

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. Through this process, state or local police hand the forfeiture case to the feds to prosecute even though there was initially no federal involvement in the investigation and seizure. State and local police can also tap into equitable sharing by working with the feds on joint task forces. About 85 percent of equitable sharing cases arise from these joint task forces, but a significant number also begin with 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.

Through the equitable sharing program, 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.

A law passed in 2017 prohibits Colorado law enforcement agencies from transferring seized property to a federal agency unless it has a net value of more than $50,000. It also prohibits state and local police from accepting payment or distribution from equitable sharing arising from a joint task force, or other multijurisdictional collaboration, unless the aggregate net equity value of the property and currency seized in the case is in excess of $50,000. This excludes 80 to 85 percent of all forfeitures from transfer to the feds, according to data compiled by the Colorado Municipal League.

Language in HB1086 would further restrict Colorado law enforcement agencies from participating in this federal program. Under the proposed law, police and prosecutors could only transfer cases to the feds through adoption or join task forces if the seizure includes currency in excess of $50,000.

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

HB1086 was referred to the House Judiciary Committee where it must get a hearing and pass by a majority vote before moving forward in the legislative process.

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