CHARLESTON, W.Va. (Feb. 17, 2025) – A bill introduced in the West Virginia House would end civil asset forfeiture in the state and take significant steps to close a federal loophole that allows law enforcement to bypass state restrictions.
Del. Chuck Horst and 10 cosponsors filed House Bill 2383 (HB2383). The legislation would repeal the state’s civil asset forfeiture process and replace it with a criminal procedure. Under the new process, forfeiture could only occur after “the state secures a conviction of a crime … and the state establishes by a preponderance of the evidence that the property is an instrumentality of, or proceeds derived directly from, the crime for which the state secured a conviction.”
HB2383 would also address the “policing for profit” motive inherent in civil asset forfeiture by requiring forfeiture proceeds to be deposited into various state funds. Under current law, police departments in West Virginia can keep up to 100 percent of forfeiture proceeds.
HB2383 would also take significant steps toward closing a federal loophole that allows state and local law enforcement to bypass West Virginia’s stricter asset forfeiture laws through a federal program known as “Equitable Sharing.”
In 2020, the state took the first step toward reforming its forfeiture process by implementing strict reporting requirements.
FEDERAL LOOPHOLE
The Equitable Sharing program enables law enforcement to transfer cases to federal authorities via a process called “adoption,” allowing prosecutors to sidestep state limits and seize property under federal law.
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.
Adoption accounts for about 30 percent of equitable sharing cases and about 15 percent of the total value forfeited under equitable sharing. The rest, and the vast majority, happens through state-federal joint task forces.
Language in HB2383 would take significant steps to close the loophole by banning adoption unless the seized property includes U.S. currency that exceeds $20,000. It would also limit forfeiture through federal task forces by requiring state prosecution unless the seized property includes U.S. currency that exceeds $20,000.
It’s difficult to say exactly how many cases would be eligible for transfer with that $20,000 cash 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
HB2383 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.
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