Indiana Bill Would Curb “Policing for Profit” Via Asset Forfeiture, But Federal Loophole Remains

INDIANAPOLIS, Ind. (Dec. 29, 2015) – A bill prefiled in the Indiana Senate 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.

Sen. Lonnie Randolph (D-2) prefiled Senate Bill 123 (SB123) earlier this month. The legislation would require criminal conviction of the property owner before finalizing asset forfeiture. As it stands now, Indiana law enforcement officers can seize assets they suspect were involved in criminal activity without even making an arrest.

The bill also creates a mechanism for the owner or interest holder in property to file for hardship release of the property, and requires a judge to ensure any legitimate seizure of property is proportionate to the offense.

FEDERAL LOOPHOLE

SB123 would represent a strong reform of Indiana’s asset forfeiture laws and go a long way toward protecting the rights of property owners, but the legislation leaves a gaping loophole that would render the reforms virtually ineffective in practice. The bill 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.

This very scenario plays out frequently in states with strong asset forfeiture laws like California. Police simply avoid such restrictions by turning cases involving seized assets over to the feds. In return, state and local agencies get up to 80 percent of the proceeds from forfeited assets back through the Federal “Equitable Sharing Program.”

Simple language can close this loophole.

“A law enforcement agency or prosecuting authority may not directly or indirectly transfer seized property to any federal law enforcement authority or other federal agency unless the value of the seized property exceeds $50,000, excluding the potential value of the sale of contraband.”

As the 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.

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.

STATES PUSH BACK

States are rapidly taking notice and passing reforms to halt this abusive practice. New Mexico enacted a law this year prohibiting the confiscation of property from suspects of a crime until after they are convicted. Montana passed a significant but less comprehensive reform plan tackling asset forfeiture this year as well.

NEXT

SB123 will be read for the first time and referred to the Senate Judiciary Committee once the regular session begins in January.