CHARLESTON, W. Va. (Jan. 25, 2024) – A bill introduced in the West Virginia House would reform the state’s asset forfeiture process to require a conviction in most cases. The enactment of this bill 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.
Del. Mike Pushkin introduced House Bill 4531 (HB4531) on Jan. 10. The legislation would replace the current civil asset forfeiture process in West Virginia with a criminal procedure requiring a conviction before the state could move forward with forfeiture.
The passage of HB4531 would also take a step toward opting 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.
The bill would address the “policing for profit” motive inherent in the asset forfeiture process by requiring all forfeiture proceeds to go into the general fund after reimbursement of 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.
A bill sponsored by Del. Chris Pritt and Del. Kayla Young (HB4565) and legislation sponsored by Del. Chris Pritt alone (HB4584) would also require a conviction before proceeding with asset forfeiture, but the bills lack provisions addressing the federal loophole.
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 partially closed the loophole in 2016 by banning adoption. It still allows cases arising through joint task forces to be prosecuted by the feds. In those cases, state and local law enforcement agencies can only keep equitable sharing proceeds if there is a criminal conviction and the value of the property is above a $40,000 threshold.
HB4531 takes a step toward addressing 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.
The vast majority of cases far fall below that $50K threshold.
This language would limit adoption, but it’s unclear how it would impact forfeiture of property seized by a joint task force.
The proposed law would also address the “policing for profit” motive inherent in the forfeiture system by directing all forfeiture proceeds to be transferred to the general fund after the payment of expenses incurred during the forfeiture process. Under current law, 25 percent of forfeiture funds go to police agencies, 25 percent to prosecuting attorneys, and 50 percent go to the attorney general.
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.
WHAT’S NEXT
All three bills were referred to the House Judiciary Committee where they must get a hearing and pass by a majority vote before moving forward in the legislative process.
- Signed as Law: Nebraska Repeals State Capital Gains Taxes on the Sale of Gold and Silver - April 26, 2024
- Signed as Law: Asset Forfeiture Reformed by Kansas, but Massive Federal Loophole Remains Mostly Open - April 25, 2024
- Alaska Senate Committee Passes Bill to Make Gold and Silver Legal Tender in the State - April 24, 2024