CONCORD, N.H. (Jan. 18, 2023) – A bill introduced in the New Hampshire House would reform the asset forfeiture process for drug offenses to require a criminal conviction in most cases. It would also take a step to 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. Dan McGuire (R) and Rep. Daniel Popovici-Muller (R) introduced House Bill 593 (HB593) on Jan. 12. New Hampshire law establishes a specific asset forfeiture process for drug offenses. This legislation would reform that process to require prosecutors to get a conviction in most cases before proceeding with forfeiture.
New Hampshire has asset forfeiture processes for other crimes, but the vast majority of forfeitures in the state are related to drug offenses.
The Institute for Justice gives New Hampshire civil asset forfeiture laws a D saying, “New Hampshire civil forfeiture laws do not adequately protect the rights of property owners.”
Passage of HB593 would take a step to opt New Hampshire out of a federal program that allows state and local police to get around more strict state asset forfeiture laws in drug-related cases. 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. 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.
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.
HB593 directly addresses the federal equitable sharing program with the following language:
No state or local law enforcement agency shall transfer or offer for adoption property, seized under state law, to a federal agency for the purpose of forfeiture under the federal Controlled Substances Act, Public Law 91-513.
The proposed law would still allow the transfer of property to federal authorities if state or local police are working on a joint task force with the feds. While this exception would still allow New Hampshire police to tap into equitable sharing the passage of HB593 would take the first step toward limiting New Hampshire’s participation in the federal forfeiture program by prohibiting adoption.
HB593 includes provisions that would put set the stage to establish concrete limits on forfeiture when joint task forces are involved.
“The attorney general, after consulting with the responsible United States Attorney, shall establish guidelines for joint task forces and multijurisdictional collaboration with the federal government. The guidelines shall be consistent with federal safeguards to ensure that activities are conducted in compliance with the U.S. Department of Justice’s policies. They shall include a minimum dollar value for seizures that the U.S. Attorney will accept for forfeiture under federal law so as to ensure that transfers of seized property to the federal government are not used to circumvent state law under this chapter.”
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.
HB593 was referred to the House Criminal Justice and Public Safety Committee where it must get a hearing before moving forward in the legislative process. An “ought-to-pass” recommendation would increase chances for passage in the full House.
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