ALBANY, N.Y. (Jan. 14, 2025) – A newly filed bill in the New York Assembly seeks to end civil asset forfeiture for most cases and curb participation in the federal equitable sharing program.
Asm. Pamela Hunter and seven cosponsors filed Assembly Bill 1437 (A1437). The legislation would replace the state’s civil asset forfeiture process with a criminal procedure. Under the proposed law, 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.”
A1437 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.
FEDERAL LOOPHOLE
A1437 would limit a federal loophole that facilitates and encourages state and local law enforcement agencies to partner with the feds, doing an end-run around more stringent state limits on forfeiture.
A federal civil asset forfeiture program known as “Equitable Sharing” allows prosecutors to bypass a more restrictive state forfeiture process by passing cases off to the federal government through a process known as “adoption.”
Under these arrangements, state or local police investigate a case on their own and then simply hand it over to a federal agency for prosecution. Even though the feds initially didn’t participate in the investigation, they handle the prosecution under federal law – and then give up to 80 percent of the take to the state law enforcement agency that helped them out.
This allows state and local police to cash in on asset forfeiture even if state law prohibits it.
The following provisions in A1437 would limit adoption in New York.
“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.”
The proposed law also addresses equitable sharing through state-federal joint task forces. These generally account for about 85 percent of federal forfeiture cases.
Under A1437, forfeiture proceedings for property seized by joint 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 prosecution in cases involving less than $20,000 in currency.
It’s difficult to say exactly how many cases would be eligible for transfer with that $20,000 threshold because only 21 states report forfeiture data. But based on analysis by the Institute for Justice, the vast majority of cases fall below that amount.
The median currency forfeiture averages just $1,276 across the 21 states with available data. Minnesota has the most transparent reporting. According to an IJ lawyer, only seven of the 3,873 cases reported in 2023 included proceeds above $50K.
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. Six years later, the SCOTUS decision still hasn’t limited asset forfeiture.
The passage of legislation that specifically limits or completely ends state participation in equitable sharing takes concrete steps toward ending it instead of waiting for more court cases.
WHAT’S NEXT
A1437 was referred to the Assembly Codes Committee where it must get a hearing and pass by a majority vote before moving forward in the legislative process.
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