Texas Bill Takes On “Policing for Profit” Via Asset Forfeiture, Closes Federal Loophole

By Mike Maharrey

A bill prefiled in the Texas Senate for the 2017 legislative session would reform the state’s asset forfeiture laws to prohibit the state from taking property without a criminal conviction in most cases. 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. Konni Burton (R-Fort Worth) prefiled Senate Bill 380 (SB380) on Dec. 20. The legislation would reform Texas law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture. Civil forfeiture would only be allowed if the property owner is unavailable or does not claim the property. Under current law, the state can seize assets even if a person is never found guilty of a crime, or even arrested.

SB380 would also prohibit state and local law enforcement from receiving proceeds from forfeited property. All funds would go to the county treasurer. Currently, up to 70 percent of asset forfeiture proceeds go directly into law enforcement agency budgets. Ending this practice would significantly curb the policing for profit motive inherent in the current law.

ADDRESSES FEDERAL PROGRAMS

SB380 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.

A law enforcement agency or attorney representing the state may not directly or indirectly transfer seized property to any federal law enforcement authority or other federal agency unless:
(1)  the value of the seized property exceeds $50,000; and
(2)  the attorney representing the state determines that:
(A)  the activity giving rise to the investigation or seizure is interstate in nature and sufficiently complex to justify the transfer; or
(B)  the seized property may only be forfeited under federal law.

In other words the legislation does not attempt to interfere with federally initiated forfeiture, but bans state and local police from passing off their cases to federal jurisdiction in most situations.

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.

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 unconstitutional “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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SB380 will be assigned to a committee once the regular session begins in January.

Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center, where this article first appeared. He proudly resides in the original home of the Principles of ’98 – Kentucky.See his blog archive here and his article archive here.He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE