SALT LAKE CITY, Utah (Dec. 16, 2016) – A bill filed in the Utah House for the 2016 legislative session would reform the state’s asset forfeiture laws, making it more difficult for police to seize property. But a loophole in the legislation would allow law enforcement to work with the feds to skirt the more stringent state law.
Rep. Brian Green prefiled House Bill 19 (HB19) on Dec. 9. The legislation would require criminal prosecution and conviction of the property owner before finalizing asset forfeiture. As it stands now, Utah law enforcement officers can seize assets they suspect were involved in criminal activity without even making an arrest.
The legislation would also tighten the criteria for legal forfeiture, stipulating that only assets used to directly facilitate the commission of a federal or state offense and any direct proceeds of criminal activity may be forfeited under the chapter.
FEDERAL LOOPHOLE
As drafted, HB19 leaves a gaping loophole that would render the reforms virtually ineffective in practice. The legislation 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.
For example, California previously had some of the strongest state-level restrictions on civil asset forfeiture in the country, but law enforcement would often bypass the state restrictions by partnering with a federal asset forfeiture program known as “equitable sharing.” Under these arrangements, state officials would simply hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds—even when state law banned or limited the practice. According to a report by the Institute for Justice, Policing for Profit, California ranked dead last of all states in the country between 2000 and 2013 as the worst offender. During the 2016 legislative session, the state closed the loophole.
Utah law used to include a provision preventing this kind of transfer, but as Radley Balko writing for the Washington Post pointed out, the Utah legislature reopened the loophole in 2004.
“In other states, like Utah, police agencies have entered into the Justice Department’s “equitable sharing” program. When a police agency hits on a case with forfeiture potential, they simply call up the DEA, ATF, or some other federal law enforcement agency. That agency then assigns an agent to play a cursory role in the investigation. The case is now federal, government by federal law. And under federal law, the feds take the forfeiture money, skim 20 percent or so off the top, then return the rest to the local police agency. It’s a handy end-around the will and intent of the state legislatures.
“The Utah voter-backed initiative in 2000 included a provision that barred state police agencies from using equitable sharing to subvert the intent of the initiative — which was to put an end to the perverse incentives created when you allow police agencies to profit from forfeitures. But the Utah legislature unhooked that provision just four years later.”
Simple language can close this loophole.
A law enforcement agency or prosecuting authority may not enter into an agreement to transfer or refer seized property to a federal agency directly, indirectly, by adoption, through an intergovernmental joint taskforce or by other means for the purposes of forfeiture litigation and instead must refer the seized property to appropriate local or state prosecuting authorities for forfeiture litigation under this chapter unless the seized property includes U.S. currency in excess of $50,000.
As the Tenth Amendment Center previously reported the federal government has 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.
NEXT
HB19 will be assigned to a committee once the regular session begins in January.
