North Dakota House Passes Bill Taking On Asset Forfeiture And Closing Federal Loophole

By Michael Maharrey

A North Dakota bill that would reform the state’s asset forfeiture laws to prohibit the state from taking property without a criminal conviction in most situations passed the House yesterday. The legislation also takes on federal forfeiture programs by banning prosecutors from circumventing state laws by passing cases off to the feds.

A coalition of eight legislators introduced House Bill 1170 (HB1170) on Jan. 6. The legislation would reform North Dakota law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture in most cases. Under current law, the state can seize assets even if a person is never found guilty of a crime, or even arrested.

HB1170 would also require asset forfeiture proceeds to go into the general fund instead of to law enforcement agencies.

The House passed HB1170 by a 50-42 vote.

The Institute of Justice says North Dakota currently has some of the worst asset forfeiture laws in the entire country.

ADDRESSES FEDERAL PROGRAMS

HB1170 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 explicitly prohibit this practice in most cases.

A state, county, or municipal law enforcement agency or prosecutor may not enter an agreement to transfer or refer seized property to a federal agency directly, indirectly by adoption, through an intergovernmental joint task force, or by other means for the purposes of forfeiture litigation unless the seized property includes United States currency in excess of one hundred thousand dollars.

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.

North Dakota is currently the second best state in terms of federal equitable sharing. This is likely because state restrictions are currently so bad. State forfeiture reform without closing the federal loophole would almost certainly increase federal forfeiture in the state.

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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HB1170 will now go to the Senate for further consideration.