JEFFERSON CITY, Mo. (March 5, 2024) – A bill introduced in the Missouri House would opt the state out of a federal civil asset forfeiture program that allows and encourages police to circumvent more strict state laws.
Rep. Tony Lovasco introduced House Bill 2861 (HB2861) on Feb. 28. 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. It would also bar state agencies from transferring property seized by joint task forces to the federal government for forfeiture unless the seizure includes cash in excess of $50,000. A vast majority of civil asset forfeiture cases fall far below that threshold.
In effect, HB2861 would withdraw Missouri from the federal program known as equitable sharing 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.
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. 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.
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. However, 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. It also allows state and local law enforcement agencies to funnel large sums of money into their budgets with no state oversight.
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.
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.
Passage of HB2861 would almost completely 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.
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.
NECESSARY
While some people believe the Supreme Court “ended” asset forfeiture, its opinion in Timbs v. Indiana ended nothing. The court merely held that the Eighth Amendment provisions prohibiting “expressive fines” apply to the state through the incorporation doctrine. Without further action, state and federal law enforcement can still use the civil asset forfeiture process with few limits. 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.”
Somin has been proved correct. Five years later, the SCOTUS decision still hasn’t limited asset forfeiture.
Going forward, opponents of civil asset forfeiture could continue to 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
At the time of this report, HB2861 had not been referred to a committee. Once it receives a committee assignment, it will need to get a hearing and pass by a majority vote before moving forward in the legislative process.
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