NASHVILLE, Tenn. (March 14, 2017) – A Nashville bill to reform asset forfeiture laws to prohibit the state from taking property without a criminal conviction, and ban prosecutors from circumventing state laws by passing cases off to the feds in most situations, had a committee hearing earlier this month and will soon come up for a vote. The hearing underscored strong law enforcement opposition to the bill.
Rep. Martin Daniel (R-Knoxville) introduced House Bill 4021 (HB4021) on Feb. 2. The legislation would reform Tennessee law by requiring a criminal conviction before prosecutors can proceed with asset forfeiture. Under current law, the state can seize assets even if a person is never found guilty of a crime and sometimes without even filing charges.
The bill would also establish a trust fund for asset forfeiture proceeds. Currently, up to 100 percent of asset forfeiture money goes directly to law enforcement agencies, creating a perverse policing for profit motive.
“Elected officials on both sides of the political aisle are realizing that the practice of civil asset forfeiture plainly flies in the face of due process of law. My constituents overwhelmingly favor reform of Tennessee laws so that a criminal conviction would be a condition of forfeiture of one’s property. House bill 421 would implement this requirement , would entitle one who successfully recovers his property from law enforcement to recover attorney fees and damages, and would close a loophole preventing a hand-off of these forfeiture matters to the federal government through its ‘equitable sharing” program,'” Rep. Daniel said.
During a hearing before the Civil Justice Subcommittee, Sevier County attorney Brian Delius shared a compelling story about a woman who got caught up in an asset forfeiture nightmare. His was arrested for having a clear plastic bag of pills and nearly $12,000 in cash. As it turns out, the pills were antacids and the money was from an inheritance. Her case was dismissed and her cash returned. The Tennessee Department of Safety then demanded she return the cash pending an asset forfeiture hearing – even though the judge had dismissed the criminal case. The state’s position was that an elected judge does not have the authority to return seized asses even after finding probable cause for forfeiture doesn’t exist.
“That’s a broken system folks,” Delius said.
Later, Knoxville chief of police David Rausch called Delius a “slick lawyer.” This infuriated committee chair Rep. Mike Carter.
“Slick meaning honorable? Slick meaning somebody who is volunteering his time to help someone who is being abused by the government?”
It remains unclear what Rausch hoped to say. He returned to his seat after a stammering apology to Carter.
It was clear that Chief Lee Trammel of the Knox County Sheriff’s Department wanted to do. He attempted to downplay the policing for profit motive inherent in the current asset forfeiture system. He didn’t do a very good job. He tried to characterize the money as insignificant, while basically revealing its significance.
“What we do in asset forfeiture procedures is about half-a-million dollars a year, roughly. Some years are more, some are less. But that’s just part of a $7 – $8 million budget. It helps. Don’t get me wrong. I’m not sneezing at half-a-million dollars. But it is a tool too. I think it is a great tool for law enforcement. But I don’t want you to have the idea that this ‘policing for profit’ or that we’re doing this to fund. It helps us, it does…it does help fund our narcotics division, our aviation unit, buys equipment, things like that.”
That led Carter to ask the obvious question.
“I’m afraid it leaves me to make this comment. If it’s such a little amount of money, why not give it up?”
Daniel said the law enforcement position actually reinforces the need for reform.
“Law enforcement’s typical argument that it cannot conduct law enforcement activities without these funds actually reinforces the argument against the practice, as it highlights the potential for improper motive in seizure of an individual’s property.”
Although law enforcement testimony wasn’t particularly effective, a large number of police offices and district attorneys showed up to oppose the bill. It seems certain their back hallway pressure will prove more effective than their public testimony.
ADDRESSES FEDERAL PROGRAMS
HB4021 would also close 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.
"A law enforcement agency shall not directly or indirectly transfer seized property to a federal law enforcement authority or other federal agency unless the value of the seized property exceeds fifty thousand dollars ($50,000), excluding the potential value of the forfeited property, if sold.
A law enforcement agency shall not transfer property to the federal government if the transfer would circumvent the protections of this part that are otherwise available to a putative interest holder in the property."
The legislation only allows transfers if the criminal conduct that gave rise to the seizure is interstate in nature and sufficiently complex to justify the transfer of 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 the Tenth Amendment Center 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 disastrous “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.
The Civil Justice Subcommittee is currently scheduled to vote on HB4021 on March 15.