H.R. 5212, would amend 28 U.S.C. § 524(c) by inserting ‘‘(12) The Attorney General shall assure that any equitable sharing between the Department of Justice and a local or State law enforcement agency was not initiated for the purpose of circumventing any State law that prohibits civil forfeiture or limits use or disposition of property obtained via civil forfeiture by State or local agencies.’’ Adoption of such language would constitute an improvement over current law by expressing a Congressional wish that the DOJ not use the equitable sharing program to facilitate circumventions of state laws governing asset forfeiture. Our worry, though, is that the language lacks any enforcement teeth. First, if H.R. 5212s anti-circumvention language were adopted, the Office of the Attorney General could continue to knowingly facilitate circumventions of state and local asset forfeiture laws by pointing to any other purpose as the purpose for which federal adoption of the forfeiture was initiated. Because the federal government uniformly enjoys superior resources and greater expertise for prosecuting forfeitures, alternative explanations will always be available. Second, even if a party were able to prove that a forfeiture was adopted by a federal agency for the express purpose of circumventing a state law that prohibited civil forfeiture or limited the use or disposition of property, its not clear that H.R. 5212 would do anything for a party to recover the asset or to sue to stop the disbursement of an equitable sharing award. A vastly superior approach would be to adopt the FAIR Acts proposal of directing all federal forfeiture proceeds to the Treasury fund, disbanding the equitable sharing program, and giving Congress discretion over appropriations. Barring that, H.R. 5212 would be improved by removing authorization for the award of any equitable sharing if the forfeiture proceeds were derived from a civil forfeiture in a state where civil forfeiture is unavailable under state law or where local law enforcement would be ineligible to receive forfeiture proceeds but for the existence of the federal equitable sharing program (that appears, after all, to be the aim of H.R. 5212). Moreover, H.R. 5212 should (if the FAIR Act proposal is shunned) expressly grant standing to forfeiture claimants and stipulated forfeiture proceeds beneficiaries (such as the school districts of Missouri and North Carolina) to sue on theories that such circumventions are unlawful, if the parties can show direct harm.
Posted on: Mon, 04 Aug 2014 15:16:28 +0000
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