Attorney General Jeff Sessions wants to ramp up federal asset forfeiture. State action  – – or more accurately inaction – – can stop him.

Earlier this month, the U.S. Department of Justice issued a policy directive on federal asset forfeiture directing the federal government to aggressively seize property even if they never charge the owner with a crime, including in states that require a criminal conviction to complete forfeiture.

The DOJ issued the directive to implement Sessions’ order to ramp up asset forfeiture.

Under the federal law, state and local police can pass asset forfeiture cases off to federal prosecutors. Once the feds “adopt” a case, the forfeiture then moves forward under federal law, often affording less protections for individuals than state law. By placing the case under federal jurisdiction, state and local law enforcement can bypass more stringent provisions under state law, such as the requirement for a criminal conviction, and collect up to 80 percent of the proceeds from forfeited assets via the federal Equitable Sharing Program.

In 2015, Holder issued a directive limiting “federal adoption” of state and local forfeiture cases to cases involving “public safety.” In December of that year, it stop equitable sharing payments due to budget constraints. The DOJ resumed payments in 2016. The new DOJ order reiterates full support for adoption, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.

During a speech, Sessions hinted that adoptive forfeiture provides an opportunity to expand federal forfeiture.

“Adoptive forfeitures are appropriate,” he said, “as is sharing with our partners.”

Institute of Justice attorney Everett Johnson told the Washington Post this is clearly a way to help state and local police skirt restrictions imposed by state governments.

“This is a federalism issue. Any return to federal adoptive forfeitures would circumvent limitations on civil forfeiture that are imposed by state legislatures … the Department of Justice is saying ‘we’re going to help state and local law enforcement to get around those reforms.’”

According to the institute of Justice, 13 states have reformed their laws and can only proceed with forfeiture after a criminal conviction. This doesn’t mean police can’t seize property incidental to an arrest, but the state can’t keep it without a guilty verdict. If the individual is not convicted, or the state never files charges, it must return the property. Through federal adoption, police and prosecutors can bypass the stringent state process, complete forfeiture through the federal system, and then collect a big chunk of the proceeds.

This federal directive underscores the importance of explicitly prohibiting state and local law enforcement agencies from passing cases off to the federal government.

California provides a good blueprint. The Golden State had some of the strongest state-level restrictions on civil asset forfeiture in the country, but law enforcement often bypassed the state restrictions by allowing the feds to adopt their cases. They then cashed in on the Equitable Sharing money. According to a report by the Institute for Justice, Policing for Profit, California was the top recipient of federal asset forfeiture proceeds between 2000 and 2013, revealing just how often police were taking advantage of the federal process. During the 2016 legislative session, the state closed the loophole.

Other states have also prohibited passing off asset forfeiture cases to the feds as part of their civil asset forfeiture reform, including New Mexico, Arizona and Nebraska. But other states have implemented forfeiture reform measures leaving the loophole open, including Iowa and Connecticut.

In order to make state forfeiture reforms truly effective, and slow Sessions’ push to ramp up federal forfeiture across the U.S., states need to ensure their asset forfeiture process includes the following language closing the loophole.

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.

This paragraph preempts laws by township, municipal, county and other governments in the state which regulate civil and criminal forfeiture.

Sessions wants to roll back the clock and undo all of the progress made in curbing asset forfeiture over the last few years. But states can stop him dead in his tracks. All they have to do is simply refuse to participate in the federal Equitable Sharing program. Don’t allow state and local police to transfer cases. Just say no.

Mike Maharrey

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