A bill introduced in the South Carolina House would reform the state’s asset forfeiture laws to prohibit the state from taking a person’s property without a criminal conviction in most situations. Passage of the bill would also close a federal loophole that allows police to circumvent more strict state forfeiture laws by passing cases off to the feds.
A bipartisan coalition of 78 representatives introduced House Bill 3968 (H.3968) on Feb. 13. The legislation would effectively end civil asset forfeiture in the state and replace it with a criminal procedure. Prosecutors would not be able to proceed with forfeiture without first obtaining a criminal conviction.
Under current South Carolina forfeiture procedures, the state can take a person’s property without even charging them with a crime. The Institute for Justice gave South Carolina a D- grade for its current forfeiture laws, saying, “South Carolina’s civil forfeiture laws offer very little protection for property owners.”
The proposed law would also direct forfeiture proceeds to go to the general fund. As it stands, 95 percent of forfeiture proceeds go to law enforcement, with 75 percent going to police agencies and 20 percent to prosecutors.
Passage of H3968 would also take a big step toward closing a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. 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.
H.3968 provides two separate provisions that would effectively end South Carolina’s participation in equitable sharing in most situations by barring the transfer of cases to the federal government without court approval and barring police from directly transferring seized assets to federal control.
(A) A law enforcement agency may not transfer a criminal investigation or proceeding to the federal government with the sole intention to circumvent state forfeiture law.
(B) For a law enforcement agency to transfer a criminal investigation or proceeding that includes forfeiture to the federal government, a state court shall affirmatively find that the:
(1) suspected criminal activity giving rise to the forfeiture is interstate in nature and sufficiently complex to justify the transfer; or
(2) seized property is forfeitable only as a violation of federal law.
A law enforcement agency may not directly or indirectly transfer seized or forfeited property to a federal law enforcement authority or other federal agency unless the:
(1) value of the seized or forfeited property exceeds fifty thousand dollars, excluding the potential value of controlled substances; and
(2) law enforcement agency determines that the criminal conduct that gave rise to the seizure is interstate in nature and sufficiently complex to justify the transfer of the property; or
(3) seized or forfeited property only may be 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.
H.3968 was referred to House Committee on Judiciary where it must pass by a majority vote before moving forward in the legislative process.