JEFFERSON CITY, Mo. (Jan. 20, 2023) – A bill introduced in the Missouri House would partially opt the state out of a program that allows police to circumvent more strict state forfeiture laws by passing cases off to the feds.
Rep. Tony Lovasco (R) introduced House Bill 868 (HB868) on Jan. 18. The proposed law would prohibit Missouri law enforcement agencies or prosecutors from entering into agreements to transfer seized property to a federal agency by way of adoption for the purpose of the property’s forfeiture under federal law.
In effect, HB868 would partially withdraw Missouri from the federal program known as equitable sharing. 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.
The equitable sharing program 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. The majority of equitable sharing cases arise from these joint task forces, but a significant number also begin with adoption.
The bill includes language that would still allow state and local police to participate in equitable sharing through joint task forces.
“This subsection only applies to a seizure by a law enforcement agency under its own authority under state law and without involvement of the federal government.”
State and local police work closely with the feds in the “war on drugs,” and data compiled by the Institute for Justice (pg. 47 of their Asset Forfeiture report) shows joint task forces generate 85 percent of equitable sharing cases.
But the number of cases handed off to the feds through adoption isn’t insignificant. According to a policy analyst at the IJ, ending adoption alone would impact roughly $1 million in equitable sharing per year.
Last year, Lovasco introduced similar legislation including provisions that would have significantly limited the ability to pass forfeiture cases to federal authority by requiring Missouri law enforcement agencies participating in a joint task force with federal agencies to transfer responsibility for the seized property to a state prosecutor for forfeiture under state law unless the seizure includes over $100,000 in U.S. currency. He was not able to get that bill to the House floor. Lovasco decided to take a more limited approach this year because the political realities in Missouri would make it highly unlikely to pass legislation limiting participation in task forces.
While the impact would be more limited, passing HB868 and ending adoption would take the first step toward limiting Missouri’s participation in the federal forfeiture program.
Missouri has some of the best state-level forfeiture restrictions in the country, according to the Institute for Justice. The state requires a criminal conviction before prosecutors can proceed with forfeiture, and law enforcement agencies don’t get a cut of the proceeds. But federal asset forfeiture standards are much lower. As a result, state and local police often pass cases to the feds to avoid the more stringent state laws.
The situation in California was similar. The Golden State state also has some of the strongest state-level restrictions on civil asset forfeiture in the country, but until the state closed the loophole, law enforcement agencies would often bypass the state restrictions by partnering with the federal government through the equitable sharing asset forfeiture program.
Under these arrangements, state officials can simply hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds—even when state law bans or limits the practice. 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. During the 2016 legislative session, the state closed the loophole.
Missouri was among the states with the highest level of federal forfeiture between 2000 and 2019, raking in over $171 million in Department of Justice equitable sharing proceeds during that time.
Passage of HB868 would partially close the loophole and modestly increase protections for Missouri property owners.
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.
While some people believe the Supreme Court “ended asset forfeiture,” the Supreme Court 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.
At the time of this report, HB868 had not been referred to a committee. Once it receives a committee assignment, the bill must get a hearing and pass by a majority vote before moving forward in the legislative process.