By Mike Maharrey

Bills introduced in the Tennessee legislature would reform asset forfeiture laws to prohibit the state from taking property without a criminal conviction. The legislation also takes on federal forfeiture programs by banning prosecutors from circumventing state laws by passing cases off to the feds in most situations.

Rep. Tilman Goins (R-Morristown) introduced House Bill 2428 (HB2428) on Jan. 21. Sen. Mae Beavers sponsors the companion bill in the Senate (SB2272). The legislation would reform Tennessee law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture. Under current law, the state can seize assets even if a person is never found guilty of a crime, or even arrested.

The bills would also require funds procured through asset forfeiture to be deposited into the state general fun instead of going to law enforcement agencies. This provision curbs the policing for profit motive inherent in the current law.





ADDRESSES FEDERAL PROGRAMS

The Tennessee bills also close 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.

(a) A law enforcement agency shall not directly or indirectly transfer seized property to a federal law enforcement authority or other federal agency unless the value of the seized property exceeds fifty thousand dollars ($50,000), excluding the potential value of the forfeited property, if sold. (b) A law enforcement agency shall not transfer property to the federal government if the transfer would circumvent the protections of this part that are otherwise available to a putative interest holder in the property.

In other words the legislation does not attempt to interfere with federally initiated forfeiture, but bans state and local police from passing off their cases to federal jurisdiction in most cases.

The inclusion of provisions 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.

Late last December the U.S. Department of Justice suspended the Equitable Sharing Program due to budget cuts. But as the Washington Post reported, the suspension won’t likely be permanent.

“In its letter, the DOJ hints that it may be able to restart payments later: ‘By deferring equitable sharing payments now, we preserve our ability to resume equitable sharing payments at a later date should the budget picture improve.’ The DOJ hopes to ‘reinstate sharing distributions as soon as practical and financially feasible,’ the letter concludes.”

Even with the program suspension in place for now, the prohibition from passing off cases remains an important provision.

California prosecutors and law enforcement agencies have regularly utilized this loophole. As the Tenth Amendment Center previously reported the federal government has inserted itself into the California’s asset forfeiture debate. 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.

Asset forfeiture laws incentivize “policing for profit” on one hand, and dubious state-federal partnerships on the other.

NEXT

HB2428 and SB2272 will need to pass through the committee process before moving on to the full House for further consideration. The Senate bill was referred to Senate Judiciary Committee. As of publication, the House bill had not been assigned to a committee.

Take action to support this bill at this link.

Mike Maharrey writes for the TenthAmendmentCenter.com where this article first appeared. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty.