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Forfeiture Reform in the Granite State

On March 29, 2012, in states, by Charles Kucher

A forfeiture reform bill has been introduced in the New Hampshire House that would effectively end civil asset forfeiture in the state and provide far greater protections for innocent property owners than the current statute does. HB 1682 eliminates the state’s existing civil asset forfeiture law and replaces it with bifurcated criminal proceedings. After the defendant is convicted of a criminal charge, the conviction is used as the basis for criminal forfeiture proceedings and the state must then prove by clear and convincing evidence that the property is eligible for forfeiture.

The bill doesn’t address law enforcement’s ability to profit from forfeiture, it leaves in place the state’s existing distribution scheme that allows the department initiating a seizure to keep 45% of sale proceeds, but it does address the use of the federal adoption to circumvent state law. No state law enforcement agency may pass a forfeiture investigation on to the federal government unless the forfeiture involves interstate activity or cannot be prosecuted in state court. Additionally, all funds paid out by the federal government must be deposited into the state’s treasury and the state or local agency is reimbursed only for investigative costs. The state does not produce a tremendous amount of equitable sharing revenue, but this is a welcome change regardless.

It is a strong bill in its current state, but the biggest concern is whether or not the provisions concerning federal adoption apply equally to state and local police. The bill states that “no unit of state government may transfer a criminal investigation or proceeding to the federal government” in order to circumvent state law. It is not immediately clear from the bill whether this would apply to every law enforcement agency in the state, since all local authority is derived from the power of the state, or if local law enforcement is exempt.

Right now the bill is looking very strong and would be a welcome change considering the current state of New Hampshire’s forfeiture law. It addresses the most serious problems with New Hampshire’s forfeiture laws, notably the lack of a full conviction requirement and provisions to deter federal adoption. The Judiciary Committee has referred the bill for interim study, so we will see in the coming weeks how it will unfold, but Rep. Cohn is to be commended for the work he’s done on the issue.

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