On Monday, a Utah Senate committee passed a bill that would reform the state’s asset forfeiture laws and make it more difficult for state and local police to participate in a program that allows them to circumvent tighter state asset forfeiture laws by passing cases off to the feds.
Rep. Todd Weiler (R) introduced Senate Bill 109 (SB109) on Jan. 30. The legislation would make several positive changes to Utah’s asset forfeiture process and clarify ambiguity in the current law. According to the Libertas Institute, SB109 would “add clarity and codify the Court’s correct interpretation of the law put in place by voters in Initiative B in 2000, and further augmented through subsequent legislative reforms we’ve worked on in recent years.” The legislation would also expand asset forfeiture reporting requirements, prohibit an agency that violates forfeiture reporting requirements to receive a grant from the forfeiture fund during the following fiscal year, and prohibit any requirement that law enforcement agencies conduct a forfeiture as a condition of receiving a grant from the forfeiture fund.
The Senate Judiciary, Law Enforcement, and Criminal Justice Committee passed SB109 with a favorable recommendation by a 4-1 vote.
Passage of SB109 would also make it more difficult to take advantage of a loophole 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 of that year 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.
A few years ago, 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.
Current Utah law prohibits prosecutors or seizing agencies from directly or indirectly transferring property held for forfeiture and not already named in a criminal indictment to any federal agency or any governmental entity not created under and subject to state law without a court order. A judge cannot issue such an order unless
(i) the conduct giving rise to the investigation or seizure is interstate in nature and sufficiently complex to justify the transfer;
(ii) the property may only be forfeited under federal law; or
(iii) pursuing forfeiture under state law would unreasonably burden a prosecuting attorney or state law enforcement agency.
SB109 would penalize any agency that violates these transfer provisions by barring it from receiving a grant from the state forfeiture fund during the following fiscal year. It would also require all equitable sharing revenue be deposited to the state fund. Law enforcement agencies would no longer be able to keep equitable sharing money, removing the financial incentive from transferring cases to the feds.
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.
SB109 will now move to the full Senate for further consideration.