Alaska Bill Takes on Asset Forfeiture, Closes Federal Loophole in Most Cases

JUNEAU, Alaska, (Feb. 1, 2017) – A bill introduced in the Alaska House would reform asset forfeiture laws to prohibit the state from taking property without a criminal conviction in most cases. The legislation also takes on federal forfeiture programs by banning prosecutors from circumventing state laws by passing cases off to the feds in most situations.

Rep. Tammie Wilson [R], Rep. Jonathan Kreiss-Tomkins [D] and Rep. Gabrielle LeDoux [R] introduced House Bill42 (HB42) on Jan. 18. The legislation would reform Alaska law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture in most cases. Under current law, the state can seize assets even if a person is never found guilty of a crime.

The bills would also require proceeds from forfeitures be deposited into the state general fund. Under current law, Alaska law enforcement agencies keep up to 70% of asset forfeiture money. This provision curbs the policing for profit motive inherent in the current law.

ADDRESSES FEDERAL PROGRAMS

HB42 also closes a loophole that allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government under its Equitable Sharing forfeiture program.

“A law enforcement agency may not refer or otherwise transfer property seized under state law to a federal agency seeking the adoption of the seized property by the federal agency.

“A law enforcement agency participating in a joint investigation or taskforce with a federal agency may not transfer property to the federal government unless the court enters an order, upon petition of the prosecuting attorney, authorizing the property to be transferred. The court may enter an order authorizing a transfer to the federal government if the transfer is actually necessary for an active criminal case or criminal investigation brought by the federal government. The court may enter an order declining the transfer if the transfer would circumvent the protections provided under AS 12.36.300 – 12.36.700”

The inclusion of provisions barring state and local law enforcement agencies from passing off cases to the feds is particularly important. In several states with strict asset forfeiture laws, prosecutors have done just that. By placing the case under federal jurisdiction, law enforcement can bypass the need for a conviction under state law and collect up to 80 percent of the proceeds from forfeited assets via the federal Equitable Sharing Program.

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.

As 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 deplorable “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.

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HB42 was referred to House Judiciary Committee where it will have to pass by a majority vote before moving forward in the legislative process.