PROVIDENCE, R.I. (April 5, 2024) – Yesterday, a Rhode Island House Committee held a hearing on a bill that would require a criminal conviction before proceeding with asset forfeiture under the state’s Controlled Substance Act. However, the legislation leaves a loophole open that would allow police to continue using asset forfeiture by partnering with the feds.
Rep. David Place and a bipartisan coalition of six cosponsors introduced House Bill 8105 (H8105) on March 27. The proposed law would end civil asset forfeiture under the state’s Uniform Controlled Substance Act and replace it with a criminal process requiring a conviction before prosecutors could proceed with forfeiture.
On April 4, the House Judiciary Committee held a hearing on H8105 and recommended the measure be held for further study. This common procedural move in the Rhode Island legislature allows committee members to analyze the bill before it comes up for a vote.
FEDERAL LOOPHOLE
While the enactment of H8105 would significantly reform the state’s asset forfeiture process, it would leave a loophole allowing police in Rhode Island to circumvent the more strict state process by sending cases to federal prosecutors.
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.
The House Judiciary Committee should amend the current legislation with the following language to close the loophole and opt the state out of equitable sharing.
A state or local law enforcement agency shall not transfer or offer for adoption property, seized under State law, to a federal agency for the purpose of forfeiture under 18 U.S. Code Chapter 46, or other federal law.
A joint task force of a law enforcement agency and a federal agency shall transfer seized property to the prosecuting authority for forfeiture under this chapter.
The joint task force may transfer seized property to the U.S. Department of Justice for forfeiture under federal law if the seized property includes U.S. currency that exceeds $100,000.
A law enforcement agency is prohibited from accepting payment or distribution of any kind from the federal government if the federal government requires seized property that includes U.S. currency less than $100,000 be transferred to the federal government for forfeiture under federal law
Very few cases exceed the $100,000 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.
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
H8105 needs to be brought up for a vote in the House Judiciary Committee. It must pass by a majority before moving forward in the legislative process.
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