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

JACKSON, Miss. (Feb. 1, 2017) – A bill introduced in the Mississippi 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. Chris McDaniel (R-Ellisville) introduced Senate Bill 2498 (SB2498) on Jan. 16. The legislation would reform Mississippi law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture. Under current law, Mississippi law enforcement can take property even if a person is never found guilt of a crime, or even charged.

SB2498 would also direct asset forfeiture proceeds to the state general fund. Currently, Mississippi law enforcement agencies can keep up to 80 percent of forfeiture proceeds.This change would help eliminate the perverse policing for profit incentives in the current law.

ADDRESSES FEDERAL PROGRAMS

SB2498 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.

'(1)  A law enforcement agency shall not directly or indirectly transfer seized property to a federal law enforcement authority or other federal agency unless:
(a)  The value of the seized property exceeds Fifty Thousand Dollars ($50,000.00), excluding the potential value of the sale of contraband; and
(b)  The law enforcement agency determines that the criminal conduct that gave rise to the seizure is interstate in nature and sufficiently complex justify the transfer of the property; or
(c)  The seized property may only be forfeited under federal law.
(2)  The law enforcement agency shall not transfer property to the federal government if the transfer would circumvent the protections of the Civil Forfeiture Reform Act of 2017 that would otherwise be available to a putative interest holder in the property."

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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SB2498 was referred to the Senate Judiciary Committee (Div. A) where it will need to pass by a majority vote before moving forward in the legislative process.