CHARLESTON, W. Va. (Jan. 17, 2023) – A bill introduced in the West Virginia House would end civil asset forfeiture in the state and replace it with a criminal process. Passage would also effectively opt the state out of a program that allows police to circumvent more strict state forfeiture laws by passing cases off to the feds.
Del. Mike Pushkin (D) introduced House Bill 2072 (HB2072) on Jan. 11. The legislation would replace the state’s civil asset forfeiture process with a criminal process. Under the new process, forfeiture could only occur if prosecutors secure a conviction for a crime that authorizes the forfeiture of property.
HB2072 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 departments in West Virginia can keep up to 100 percent of forfeiture proceeds.
The Institute for Justice gave West Virginia’s current forfeiture process a D- grade. In 2020, the state took the first step toward reforming its forfeiture process by implementing strict reporting requirements.
Passage of HB2072 would effectively opt West Virginia 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.
A second bill introduced by Del. Chris Pritt (R) (HB2329) would make similar reforms to the state’s asset forfeiture process, but it would not opt the state out of the federal program.
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.
HB2072 directly addresses the federal equitable sharing program with the following language:
Law-enforcement agency or prosecuting authority shall not directly or indirectly transfer seized property to any federal law-enforcement authority or other federal agency unless:
(1) The value of the seized property exceeds $50,000, excluding the potential value of the sale of contraband, or
(2) The seized property is not forfeitable under state law and may only be forfeited under federal law.
Most forfeitures fall below the $50,000 threshold.
HB2329 does not include this language. If it moves forward in the legislative process, it should be amended to address federal forfeiture.
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
HB2072 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.
