By Mike Maharrey
Two bills prefiled in the South Carolina Senate 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 either bill would also effectively opt the state out of a program that allows police to circumvent more strict state forfeiture laws by passing cases off to the feds.
Sen. Chip Campsen (R) filed Senate Bill 41 (S41) on Nov. 30. Sen. Gerald Malloy (D) filed Senate Bill 48 (S48) on the same day. Both bills would repeal the state’s civil asset forfeiture process and replace it with a criminal procedure. The proposed laws would require a criminal conviction before prosecutors could proceed with asset forfeiture in most cases.
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 laws would address the “policing for profit” incentives inherent in the current system. S41 would direct proceeds after expenses to a separate fund. Law enforcement agencies could apply for money from that fund for specific purposes. S48 would direct all proceeds after expenses to the general fund. As it stands, 95 percent of forfeiture proceeds go directly to law enforcement, with 75 percent going to police agencies and 20 percent to prosecutors involved in the case.
Passage of either bill would effectively opt South Carolina out of a federal program 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 2017 by then-Attorney General Jeff Sessions for the Department of Justice (DOJ) that remains in effect today.
While some people believe the Supreme Court “ended asset forfeiture, its 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 “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.
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.
Through equitable sharing, state and local 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.
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.
S41 and S41 both directly address equitable sharing.
Under S41, “A law enforcement agency may not transfer a criminal investigation or forfeiture proceedings to the federal government for the predominate intention to circumvent the forfeiture provisions of this chapter nor may the agency refer, transfer, or otherwise relinquish possession of property seized under state law to a federal agency not involved in the initial investigation of a criminal offense for purposes of forfeiture.”
S48 includes the following language.
A law enforcement agency may not transfer a criminal investigation or proceeding to the federal government with the sole intention of circumventing state forfeiture law.
In a case in which the aggregate net equity value of the property and currency seized is fifty thousand dollars or less, excluding the value of contraband, a law enforcement agency participating in a joint task force or other multi-jurisdictional collaboration with the federal government shall transfer responsibility for the seized property to the prosecuting agency for forfeiture under state law.
If the federal government prohibits the transfer of seized property and currency to a prosecuting agency as required by subsection (C) and instead requires the property be transferred to the federal government for forfeiture under federal law, then the law enforcement agency is prohibited from accepting payment of any kind or distribution of forfeiture proceeds from the federal government.
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.
The South Carolina legislature will convene for the 2023 session on Jan. 10. S41 and S48 were both referred to the Senate Committee on Judiciary where they will need to get a hearing and pass by a majority vote before moving forward in the legislative process.