CHARLESTON, W. Va. (March 13, 2020) – Last week, the West Virginia House gave final approval to a bill that would impose strict reporting requirements for all asset forfeitures in the state. Enactment of the bill would take the first step that could lead to substantive reforms, including closing a federal loophole that allows police to bypass strict state asset forfeiture laws.
A bipartisan coalition of two Republicans and one Democrat introduced House Bill 4717 (HB4717) last month. The legislation would require law enforcement agencies to report extensive details about asset forfeitures in the state including the type and value of property seized and whether someone was charged with a crime when the property was forfeited. It would also require reporting on federal equitable sharing. Under the proposed law, the information would be compiled on a publicly available website.
The House passed HB4717 by a 77-20 vote. The Senate approved an amended version 34-0 and the House concurred with the amendments 75-24. The bill now goes to Gov. Jim Justice’s desk for his consideration.
While the enactment of HB4717 would not reform West Virginia asset forfeiture laws, it would set a foundation to do so in the future. By increasing transparency, the legislation allows West Virginians to see the reality of asset forfeiture. As the saying goes, sunlight is the best antiseptic. Transparency often creates the momentum needed to drive future change.
The requirement to report equitable sharing could set the stage to close a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. This is particularly important in light of a policy directive issued last July by Attorney General Jeff Sessions for the Department of Justice (DOJ).
FEDERAL LOOPHOLE
“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. The new DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.
Law enforcement agencies often bypass 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.
Until recently, 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 closed the loophole in 2016.
New Jersey could close this loophole in most situations by effectively withdrawing from the federal program. We recommend the following language.
A local, county or state law enforcement agency shall not refer, transfer or otherwise relinquish possession of property seized under state law to a federal agency by way of adoption of the seized property or other means by the federal agency for the purpose of the property’s forfeiture under the federal Controlled Substances Act, Public Law 91 513-Oct. 27, 1970.under the federal Controlled Substances Act or other federal law.In a case in which the aggregate net equity value of the property and currency seized has a value of $50,000 or less, excluding the value of contraband, a local, county or state law enforcement agency or participant in a joint task force or other multijurisdictional collaboration with the federal government (agency) shall transfer responsibility for the seized property to the state prosecuting authority for forfeiture under state law.If the federal government prohibits the transfer of seized property and currency to the state prosecuting authority as required by paragraph (1) and instead requires the property be transferred to the federal government for forfeiture under federal law, the agency is prohibited from accepting payment of any kind or distribution of forfeiture proceeds from the federal government.
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.
WHAT’S NEXT
Gov. Justice will have until March 25 to sign or veto HB4717. If he takes no action, it will become law without his signature.
The Tenth Amendment Center works to preserve and protect Tenth Amendment freedoms through information and education. The center serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power. Visit https://tenthamendmentcenter.com/