CONCORD, N.H. (March 25, 2016) – Today the New Hampshire House passed a bill that represents an important first step to reform and restrict civil asset forfeiture.
Rep. Dan McGuire (R-Merrimack), along with 10 bipartisan legislators, introduced House Bill 636 (HB636) in January. The legislation would reform New Hampshire law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture. Under the proposed law, prosecutors would also have to prove by clear and convincing evidence that the property was derived from, or used in, the commission of a crime. Under current law, the state can seize assets even if a person is never found guilty of a crime, or even arrested.
HB636 would also direct all asset forfeiture proceeds into the state general fund instead of law enforcement budgets. This would minimize the policing for profit incentives inherent in the current system.
On Wednesday, the legislation cleared the House with a voice vote.
A loophole remains in HB636 that would allow state and local law enforcement to pass off forfeiture cases to the feds, thereby bypassing more stringent state law. But despite the loophole, sources close to the Tenth Amendment Center in New Hampshire call this a foundational first step, and the federal loophole is on their radar to address in 2017 if HB636 ultimately passes into law.
HB636 would represent a strong reform of New Hampshire asset forfeiture laws and go a long way toward protecting the rights of property owners, but the loophole ultimately needs to be closed. This would require amendment language or legislation in the future 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.”
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, New Hampshire needs to address the loophole to ensure police cannot circumvent the law in the future. Legislators can do so by adding the following language:
“A law enforcement agency or prosecuting authority may not enter into an agreement to transfer or refer seized property to a federal agency directly, indirectly, by adoption, through an intergovernmental joint taskforce or by other means for the purposes of forfeiture litigation and instead must refer the seized property to appropriate local or state prosecuting authorities for forfeiture litigation under this chapter unless the seized property includes U.S. currency in excess of $50,000.”
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.
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.
HB636 will now move on to the New Hampshire Senate for further consideration.