JUNEAU, Alaska, (Feb. 25, 2016) – A bill introduced in the Alaska House would reform asset forfeiture laws to prohibit the state from taking property without a criminal conviction. 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 Bill 317 (HB317) on Feb. 15. The legislation would reform Alaska law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture. Under current law, the state can seize assets even if a person is never found guilty of a crime, or even arrested.
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
HB317 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”
In other words the legislation does not attempt to interfere with federally initiated forfeiture, but bans state and local police from passing off their cases to federal jurisdiction in most cases. The bill would also require any equitable sharing program money obtained through allowed transfers to be deposited in the state’s general fund.
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.
Late last December the U.S. Department of Justice suspended the Equitable Sharing Program due to budget cuts. But as the Washington Post reported, the suspension won’t likely be permanent.
“In its letter, the DOJ hints that it may be able to restart payments later: ‘By deferring equitable sharing payments now, we preserve our ability to resume equitable sharing payments at a later date should the budget picture improve.’ The DOJ hopes to ‘reinstate sharing distributions as soon as practical and financially feasible,’ the letter concludes.”
Even with the program suspension in place for now, the prohibition from passing off cases remains an important provision.
California prosecutors and law enforcement agencies have regularly utilized this loophole. As previously reported by the Tenth Amendment Center, 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 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.
Asset forfeiture laws incentivize “policing for profit” on one hand, and dubious state-federal partnerships on the other.
HB317 was referred to the Judiciary Committee where it will need to pass by a majority vote before moving on to the full House for further consideration.