On Monday, Governor Asa Hutchinson signed a bill that reforms Arkansas’ asset forfeiture laws to prohibit the state from taking a person’s property without a criminal conviction in most situations. Current law already takes a step toward shutting a loophole that would allow state and local police to circumvent the more stringent state asset forfeiture process by passing cases off to the feds.
Sen Bart Hester (R-Cave Springs) introduced Senate Bill 308 (SB308) on Feb. 12. The new law specifically ends civil asset forfeiture in most Arkansas cases and replaces it with a criminal procedure. Under the law, prosecutors cannot proceed with forfeiture without a criminal conviction in all but a handful of cases.
“There shall be no civil judgment under this subchapter and no property shall be forfeited unless the person from whom the property is seized is convicted of a felony offense that related to the property being seized and that permits the forfeiture of the property.”
The Institute for Justice gave Arkansas asset forfeiture laws a D- grade, calling them “awful.”
While some people believe the Supreme Court “ended asset forfeiture,” the recent opinion in Timbs v. Indiana ended nothing. Without further action, civil asset forfeiture remains. Additionally, as law professor Ilya Somin noted, the Court left an important issue unresolved. What exactly counts as an “excessive” in the civil forfeiture context?
“That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal.”
Going forward, opponents of civil asset forfeiture could wait and see how lower federal courts will address this “over the next few years,” or they can do what a number of states have already taken steps to do, end the practice on a state level, and opt out of the federal equitable sharing program as well.
While the current asset forfeiture process in Arkansas desperately needs reforming, the state has already taken a step toward withdrawing from a federal program that allows state and local police to circumvent the state process. This will become key if SB308 becomes law.
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).
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.
Arkansas law prohibits the transfer of property to the feds without judicial approval.
(1) No state or local law enforcement agency may transfer any property seized by the state or local agency to any federal entity for forfeiture under federal law unless the circuit court having jurisdiction over the property enters an order, upon petition by the prosecuting attorney, authorizing the property to be transferred to the federal entity.
(2) The transfer shall not be approved unless it reasonably appears that the activity giving rise to the investigation or seizure involves more than one (1) state or the nature of the investigation or seizure would be better pursued 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.
While current law does limit law enforcement’s ability to transfer forfeiture cases to the federal government by requiring a judicial order, it still leaves a loophole open to circumvent the requirement for a criminal conviction. There is no guarantee judges won’t rubber-stamp prosecutors’ requests. Arkansas should effectively withdraw from the federal equitable sharing program altogether. We can suggest the following language for a bill in the next legislative session:
A local, county or state law enforcement agency shall not refer, transfer or otherwise relinquish possession of property seized under state law to a federal agency by way of adoption of the seized property or other means by the federal agency for the purpose of the property’s forfeiture under the federal Controlled Substances Act, Public Law 91 513-Oct. 27, 1970, under the federal Controlled Substances Act or other federal law.
In a case in which the aggregate net equity value of the property and currency seized has a value of $50,000 or less, excluding the value of contraband, a local, county or state law enforcement agency or participant in a joint task force or other multijurisdictional collaboration with the federal government (agency) shall transfer responsibility for the seized property to the state prosecuting authority for forfeiture under state law.
If the federal government prohibits the transfer of seized property and currency to the state prosecuting authority as required by paragraph (1) and instead requires the property be transferred to the federal government for forfeiture under federal law, the agency is prohibited from accepting payment of any kind or distribution of forfeiture proceeds from the federal government.