A bill introduced in the Maryland Senate would close a loophole allowing state and local police to circumvent stringent state asset forfeiture laws by passing cases off to the feds.
Sen. William Smith (D) introduced Senate Bill 764 (SB764) on Feb. 4. The legislation would withdraw Maryland from a federal program that allows state and local police to get around more strict state asset forfeiture laws. This is particularly important in light of a policy directive issued in July 2017 by then-Attorney General Jeff Sessions for the Department of Justice (DOJ).
In 2016, Gov. Larry Hogan signed significant reforms to Maryland’s asset forfeiture process into law that also included detailed reporting requirements. But the reforms left open a loophole that created an avenue for police to bypass the more stringent state requirements.
A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. The DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.
Law enforcement agencies can circumvent more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.
Until recently, California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.
The asset forfeiture reforms instituted in 2016 included detailed reporting on Maryland law enforcement’s participation in the equitable sharing program.
SB764 would close the loophole and end Maryland’s participation in the program altogether.
A forfeiting authority or seizing authority may not receive the proceeds of, or enter into an equitable sharing agreement with a federal agency to receive the proceeds of, property subject to forfeiture under § 12–102 of this title that is forfeited under federal law.
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 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.
SB764 was referred to the Senate Judicial Proceedings Committee where it will need to pass by a majority vote before moving forward in the legislative process. It is scheduled for a public hearing on Feb. 22 at 12 p.m.