OKLAHOMA CITY (Feb. 1, 2017) – A bill prefiled in the Oklahoma Senate would reform the state’s asset forfeiture laws by eliminating civil forfeiture and providing for a jury trial. The legislation also takes on federal forfeiture programs by banning prosecutors from circumventing state laws by passing cases off to the feds.
Sen. Kyle Loveless (R) prefiled Senate Bill 585 (SB585) on Jan. 19. The legislation would end civil asset forfeiture in Oklahoma and provide for a jury trial before a state could seize a person’s property.
"A party to forfeiture action under this section shall be entitled to a trial by jury. A trial related to a forfeiture action shall be held in a single proceeding with the trial of the related alleged crime unless the court grants the defendant’s motion for a separate trial on the forfeiture issue."
The legislation would also raise the standard of proof from “a preponderance of the evidence” to “clear and convincing evidence.”
Last summer, local media reported the Oklahoma Highway Patrol uses a device that allows officers to electronically confiscate money on prepaid cards based on mere suspicion rather than a criminal conviction. The revelation underscores the importance of asset forfeiture reform in the Sooner State.
Loveless also prefiled a second bill that would place a constitutional amendment on the ballot prohibiting asset forfeiture without a criminal conviction. Senate Joint Resolution 30 (SJR30) would allow voters to approve the addition of the following language to the state constitution during the next general election.
"Section 24A. No private personal property seized by law enforcement shall be forfeited unless the owner of the property is convicted of an offense requiring such forfeiture, as determined by the legislature."
The constitutional amendment would assure reform of Oklahoma asset forfeiture laws, and codify protections in the state constitution. But without passage of SB585, further action would be necessary to rewrite the statute and close a federal loophole that would allow police to circumvent more strict state forfeiture laws.
ADDRESSES FEDERAL PROGRAMS
SB585 closes the 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 explicitly prohibit this practice in most cases.
"No property seized pursuant to the provisions of the Uniform Dangerous Controlled Substances Act or money received from the sale of such property shall be transferred directly or indirectly to any federal law enforcement authority or other federal agency unless the property seized includes cash of Fifty Thousand Dollars ($50,000.00) or more."
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.
Passage of a constitutional amendment baring forfeiture without a criminal conviction would be a significant form, but the legislature would need to follow up to close 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.
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.
Both SB585 and SJR30 will be formally introduced in the Oklahoma Senate on Feb. 6, once the regular session convenes. After that both bill will receive a committee assignment. They will need to pass by a majority vote before moving forward in the legislative process.