Signed as Law: Ohio Takes on Asset Forfeiture

civil-forfeiture-lawBy Mike Maharrey

On Wednesday, Ohio Gov. John Kasich signed a bill that reforms asset forfeiture laws to prohibit the state from taking property without criminal charges in many cases. The new law also takes on federal forfeiture programs by banning prosecutors from circumventing state laws by passing cases off to the feds in most situations.

Rep. Rob McColley (R-Napoleon) and Rep. Tom Brinkman Jr. (R-Cincinnati), along with 17 cosponsors, introduced HB347 in 2015.  Under current Ohio law, police can seize and keep cash and personal property on the mere suspicion that a crime was committed. But according to a report from Reason, passage into law “switches the burden of proof from the defendant to the government to show why property is connected to a crime and bars civil forfeiture for amounts under $15,000.”

The new law also almost completely closes a federal 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 House passed HB347 72-25 back in May. The Senate unanimously passed an amended version of the bill in December, and the House gave final approval 81-10.

“Ensuring that the government cannot take a citizen’s property without due process of law makes for smart policy and smart politics,” Holly Harris, the executive director of the U.S. Justice Action Network said in a press release in Dec. “Our polling found that 81 percent of Ohioans on both sides of the aisle agree that the government should not be able to take property without due process.”

ADDRESSES FEDERAL PROGRAMS

Police and prosecutors regularly circumvent state restrictions on asset forfeiture by simply transferring cases to the federal government. Then, under a program known as “Equitable Sharing,” the state and local police still keep up to 80% of the value of what was forfeited under federal law. Ohio state and local law enforcement agencies raked in more than $80 million this way between 2000 and 2008. This is a major reason why the Institute for Justice gave Ohio a D- rating on forfeiture.

HB347 closes this loophole in most situations. It specifically bans the use of this federal loophole for seizures under $100,000 in value. This represents a vast majority of cases.

A law enforcement agency or prosecuting authority shall not directly or indirectly transfer or refer any property seized by the agency or authority to any federal law enforcement authority or other federal agency for purposes of forfeiture under federal law unless the value of the seized property exceeds one hundred thousand dollars, excluding the potential value of the sale of contraband, or the property is being transferred or referred for federal criminal forfeiture proceedings.

FEDERAL LOOPHOLE

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.

In December 2015, the U.S. Department of Justice suspended the Equitable Sharing Program due to budget cuts, but it was resumed just four months later.

California prosecutors and law enforcement agencies regularly utilized this loophole. The state closed it when Gov. Jerry Brown signed SB443 into law.  As the Tenth Amendment Center previously reported the federal government actually 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.

Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center, where this article first appeared. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE

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