Delaware Bill Takes on Asset Forfeiture, Closes Federal Loophole

DOVER, Del. (April 21, 2017) – A bill introduced in the Delaware Senate would reform the state’s 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.

Sen. Colin Bonini (R), along with a bipartisan coalition of 19 cosponsors, introduced Senate Bill 60 (SB60) on April 5. The legislation would reform Delaware law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture, and would completely end civil asset forfeiture in the state. Currently Delaware law enforcement can take property even if a person is never found guilt of a crime, or even charged. The Institute of Justice called Delaware’s current asset forfeiture laws some of the worst in the country.

Under the proposed law, asset forfeiture proceeds would go into the general fund after paying off prescribed expenses. Currently Delaware law enforcement agencies can keep up to 100 percent of forfeiture money. This change would reduce the perverse policing for profit incentives in the current law.

ADDRESSES FEDERAL PROGRAMS

SB60 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. The proposed law would specifically prohibit this practice in most cases.

"(a) No unit of State government may transfer a criminal investigation or proceeding to the federal government to circumvent State forfeiture law.
(b) For a State government unit to transfer a criminal investigation or proceeding that includes forfeiture to the federal government, a State court shall affirmatively find that:
(1) the suspected criminal activity giving rise to the forfeiture is interstate in nature and sufficiently complex to justify the transfer; or
(2) the seized property is forfeitable only as a violation of federal law."

The legislation also requires any proceeds from allowable federal forfeiture to be deposited in the state treasury and prohibits law enforcement agencies from directly accepting Equitable Sharing Program money.

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 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 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.

WHAT’S NEXT

SB60 was referred to the Senate Judicial and Community Affairs Committee where it must pass by a majority vote before moving forward in the legislative process.