Model Anti-Circumvention Forfeiture Law

Protecting State Sovereignty from Federal Forfeiture Overreach

Under civil forfeiture, law enforcement agencies can permanently confiscate your cash, car, or even your home, without convicting, or even charging you with a crime. Although some states have taken action to protect innocent property owners from forfeiture abuse, a loophole in forfeiture law still puts owners at risk. By participating in a federal forfeiture program known as “equitable sharing,” state and local agencies can outsource forfeiture litigation to a federal agency and collect up to 80 percent of the proceeds from forfeited property.

According to a report by the Institute for Justice, Policing for Profit, the U.S. Department of Justice paid out more than $4.73 billion in equitable-sharing funds to state and local agencies from 2000 to 2013. During that time, annual payments more than tripled. The Treasury Department also paid out $1.13 billion in equitable-sharing payments during that same period.

The Institute for Justice has drafted model anti-circumvention legislation for both state and the federal governments to better protect property owners from this abusive program. Under this model, no county, municipal or state agency or intergovernmental task force can transfer seized property for litigation under equitable sharing, unless the seized property includes U.S. currency valued at over $100,000.

According to the Executive Office for Asset Forfeiture at the Treasury Department, “It is our view that the greatest damage to criminal enterprises can be achieved through large forfeitures” that are “high-impact, i.e., cash forfeitures equal to or greater than $100,000.”

Importantly, this legislation does not change the authority of police, sheriffs and highway patrols to collaborate with the federal government to seize contraband and related property.  Instead, it protects the power of state legislatures to ensure that most forfeiture cases will be litigated under state law.

So far, Arizona, California, Maryland, Nebraska, New Mexico, Ohio and Washington, D.C. have enacted laws that limit their agencies from participating in the federal government’s equitable sharing program.

Model Legislation

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