Delaware Bill Takes on “Policing for Profit” via Asset Forfeiture, Closes Federal Loophole

DOVER, Del. (April 25, 2016) – 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-Dover), along with a bipartisan coalition of 14 cosponsors, introduced Senate Bill 222 (SB222) on April 12. The legislation would reform Delaware 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 bill would also require funds procured through asset forfeiture to be deposited into the state general fund instead of going to law enforcement agencies. Under current law, law enforcement agencies keep up to 100% of asset forfeiture money. This provision would significantly curb the policing for profit motive inherent in the current law.

“In America, the government should not be allowed to take your property unless they can prove you did something wrong,” Bonini told the News Journal. “I think this really touches people’s sense of what the relationship between government and people should be about.”

ADDRESSES FEDERAL PROGRAMS

SB222 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 case and would only allow local agencies to keep equitable sharing funds equaling cost of investigation.

"(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.

(c) All funds paid by the federal government must be deposited into the State’s treasury.  The State shall credit:

(1) the State government unit involved with the federal government sufficiently to reimburse it for investigation costs, excluding salaries, that the State government unit incurred related to the seizure of the assets subject to the forfeiture action and

(2) the remainder to the general fund."

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 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 it was resumed just four months later.

California prosecutors and law enforcement agencies have regularly utilized this loophole. 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.

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.

Asset forfeiture laws incentivize “policing for profit” on one hand, and dubious state-federal partnerships on the other.

NEXT UP

SB222 was referred to the Senate Public Safety Committee where it will have to pass by a majority vote before moving on to the full Senate.

Take action to support SB222 at this link.