BOSTON (Nov. 5, 2015) – A bill under consideration in the Massachusetts Senate would reform asset forfeiture laws to prohibit the state from taking property without a criminal conviction in most cases.
Introduced in April by Sen. Salvatore DiDomenico (D-Middlesex) along with a bipartisan group of cosponsors, Senate Bill 797 (S797) was given a hearing in the Joint Committee on the Judiciary last month with a decision yet to be made on the legislation.
If passed, S797 would reform the practice of civil asset forfeiture under state law by only allowing forfeitures of property by government officials to be completed after “proving to the court the existence of probable cause to institute the action.”
S797 would also remove certain financial incentives facilitating civil asset forfeitures within the state. Asset forfeitures would be prohibited from being a “source of revenue to meet the operating needs of [any police or sheriff’s] department.” This would stop law enforcement from using the disposition of seized assets as a reliable source of revenue.
As currently drafted, S797 leaves a loophole open that could make the proposed state reforms generally ineffective.
The bill needs to include amendment language to stop state and local law enforcement from turning cases over to the federal government, thereby circumventing any restrictions placed on asset forfeiture at the state level.
This very scenario plays out frequently in states with strong asset forfeiture laws like California. Police simply avoid state-only restrictions on asset forfeiture by turning cases involving seized assets over to the feds. In return, state and local agencies get up to 80 percent of the proceeds from forfeited assets back through the Federal Equitable Sharing Program.
Simple language can close this loophole.
“A law enforcement agency or prosecuting authority may not directly or indirectly transfer seized property to any federal law enforcement authority or other federal agency unless the value of the seized property exceeds $50,000, excluding the potential value of the sale of contraband.”
As the Tenth Amendment Center previously reported, the federal government has inserted itself into the California’s asset forfeiture debate. The feds clearly want the policy to continue.
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.
NOT MAKING THE GRADE
If amended, S797 would make it more difficult for what the Institute for Justice referred to as ‘Policing for Profit’ and its corrupting influence on public officials to proliferate. The think-tank gave the state of Massachusetts a “D” grade on their comprehensive Asset Forfeiture Report released in 2010.
“The government tends to go after folks who can’t defend themselves adequately,” Dan Alban, an attorney with the Institute for Justice, said in a Watchdog.org report. “Such defense is usually costly and there are few who specialize in it. Furthermore, forfeiture often involves cash that a business needs to operate, which provides an incentive for a fast settlement just to stay in business.”
If amended, S797 would be a much-needed step in the right direction toward reforming civil asset forfeiture in the Bay State.
The bill must be approved by the Joint Committee on the Judiciary before Mar. 2016 to receive a vote in the full Senate.
Tenth Amendment Center
The Tenth Amendment Center is a national think tank that works to preserve and protect the principles of strictly limited government through information, education, and activism. 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 as required by the Constitution. For more information visit the Tenth Amendment Center Blog.