ALBANY, N.Y. (Jan. 25, 2023) – A bill introduced in the New York Senate would end civil asset forfeiture in the state and replace it with a criminal process. Passage of the bill would also opt the state out of a program that allows police to circumvent more strict state forfeiture laws by passing cases off to the feds.

Sen. Jamaal Bailey (D) introduced Senate Bill 2192 (S2192) on Jan. 19. It is a companion bill to Assembly Bill 641 (A641) introduced earlier this month.

The legislation would replace the state’s civil asset forfeiture process with a criminal process. Under the new process, forfeiture could only occur if the “prosecuting authority secures a conviction of a crime that authorizes the forfeiture of property and the prosecuting authority establishes by clear and convincing evidence the property is an instrumentality of or proceeds derived directly from the crime for which the state secured a conviction.”

S2192 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 opt New York out of a federal program that allows state and local police to get around more strict state asset forfeiture laws in most 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.

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.

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.

Language in the bill would limit New York law enforcement from participating in the equitable sharing program through the adoption process.

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.

I would also limit participation in the program by law enforcement agencies working on joint task forces. Forfeiture proceedings for property seized by joint state/federal task forces would have to be prosecuted in state courts unless the seizure includes currency over $20,000. State and local law enforcement agencies would be prohibited from receiving equitable sharing funds if the federal government requires federal forfeiture in cases involving less than $20,000 in currency.

Most forfeitures fall below the $20,000 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.

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

S2192 was referred to the Senate Codes Committee where it must receive a hearing and pass by a majority vote before moving forward in the legislative process.

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