AUSTIN, Texas (Nov. 18, 2016) – A bill filed for the 2017 legislative session would modestly reform Texas asset forfeiture laws and close a federal loophole that allows law enforcement to avoid state restrictions on the practice.

Sen. Juan Hinojosa (D-Dist. 20) filed Senate Bill 156 (SB156) on Nov. 14. The legislation would make it more difficult for the state to win asset forfeiture cases by raising the burden of proof the state has to meet from “a preponderance of the evidence” to “clear and convincing evidence” that the asset was linked to criminal activity. The new law would still allow police to seize assets without a criminal conviction.

While the reform is somewhat modest, it would represent a step forward and set the stage for more substantive reforms in the future.

FEDERAL LOOPHOLE

SB156 also closes 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. The following language shuts the loophole:

TRANSFER OF FORFEITABLE PROPERTY TO FEDERAL GOVERNMENT. A law enforcement agency or attorney representing the state may not directly or indirectly transfer seized property to any federal law enforcement authority or other federal agency and may not coordinate with the authority or agency regarding seized property unless: (1) the value of the seized property exceeds $50,000, excluding the value of any controlled substance; and (2) the attorney representing the state determines that: (A) the activity giving rise to the applicable investigation or seizure is interstate in nature and sufficiently complex to justify the transfer; or (B) the seized property may only be forfeited under federal law. COOPERATION IN FEDERAL FORFEITURE ACTION. A law enforcement agency or the Texas National Guard, when operating in a nonmilitary role, may not participate, assist, or cooperate in a forfeiture action brought by the federal government unless the value of the seized property subject to forfeiture exceeds $50,000, excluding the value of any controlled substance.

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 starting with a state or local case, then transferring it to 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.

California prosecutors and law enforcement agencies have regularly utilized this loophole to get around strict state-level restrictions on forfeiture. According to a report by the Institute for Justice, Policing for Profit, between 2000 and 2013, the U.S. DOJ paid local and state agencies in Nebraska more than $48.3 million in equitable-sharing proceeds. “In 2013, out of all properties seized for equitable sharing in Nebraska, 78 percent were valued at under $25,000.”

In other words, if SB156 with these provisions become law, it will not only ensure Texas police don’t circumvent the bill’s a higher burden of proof, but it will also ensure they can’t skirt future reforms to the state’s asset forfeiture law.

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.