Earlier in the legislative session, Rep. Felisha Leffler, R-Enosburgh, and Rep. Barbara Rachelson, D/P-Burlington, formed an unlikely team, collaborating on a bill to change Vermont’s civil forfeiture process.
Their bill, H.533, would have given individuals greater legal protection to reclaim property seized by law enforcement.
But in the final days of the legislative session, the Senate Committee on Judiciary removed all policy changes from the bill. Instead, H.533 now creates a working group to study the forfeiture process.
Both chambers approved the watered-down bill Wednesday, so it awaits Gov. Phil Scott’s approval.
Sen. Dick Sears, D-Bennington, the chair of the Senate judiciary committee, said state’s attorneys, sheriffs and defense attorneys didn’t agree on the policy changes in the bill, including how to divide the proceeds from seized property.
Vermont police can seize someone’s property — ranging from cash to cars — if they suspect the property is linked to a crime. Law enforcement agencies can keep the property, even if they never prosecute the owner. Because forfeiture is a civil process, the burden is on the property owners to win their belongings back.
In Vermont, most forfeiture cases are not handled in the state court system, and are instead handed off to federal agencies. Under the U.S. Department of Justice’s Equitable Sharing program, the value of the seized property is split between the department and local law enforcement. Local and state law enforcement get up to 80% of the seized assets.
Some local law enforcement agencies spend this money on training and equipment, according to Leffler.
From 2018 to 2020, Vermont law enforcement agencies received $791,000 from forfeitures that went through a federal process, according to data from the Institute for Justice, a libertartian public interest law firm.
The House version of H.533 would have restricted when local law enforcement could hand off forfeiture cases to the federal government. If the property was worth less than $25,000, it would have to be handled in the state judicial system.
The bill would also have changed how the proceeds were distributed. First, the money would go toward restitution for any victim involved in an underlying crime. After that, only 45% of the revenue would go to local and state law enforcement agencies; 55% would go to the state’s general fund.
Advocates for forfeiture reform, including the Institute for Justice, argue that reducing the percentage directed to law enforcement reduces the incentive for police to seize people’s property.
Leffler also sees this as a state sovereignty issue, she said.
“Should a Vermont citizen, who’s pulled over under a Vermont law, who has their property taken under a Vermont process, have that farmed out to the feds so law enforcement can get more money?” Leffler said in an interview. “No. It should be kept in a state system.”
The House version of H.533 also changed forfeiture from a civil process to a criminal one, which would have granted property owners the right to an attorney.
Civil forfeiture has been a longstanding target of national criminal justice reform efforts.
In 1997, the president of the American Civil Liberties Union testified before the U.S. House of Representatives, arguing that “all civil forfeiture schemes inherently violate fundamental constitutional rights.”
In the past few years, multiple bills have been introduced in Congress to reform civil forfeiture, but they didn’t go anywhere. At least 32 states have passed some kind of forfeiture reform since 2015, according to the Institute for Justice.
Forfeiture in Vermont is not a widely used practice, according to Leffler and Rachelson. But they said they want to eliminate any legal possibility that the process could be abused.
“While Vermont doesn’t have a plethora of abuse of forfeiture, it could,” Leffler said. “Other states do.”
A Senate draft of the bill from April would have given 80% of forfeiture proceeds to law enforcement agencies — specifically the Vermont Attorney General’s Office, the states’ attorneys and sheriffs and local police — with the funds allocated according to each agency’s involvement in the case. A draft from May directed 70% of proceeds to law enforcement, far greater than what was proposed in the House.
Last week, the committee changed the bill to a study.
“Obviously whenever you resort to a study, you weren't able to come to improvements in the system,” Sears said. “We put that off for another year and that's never a positive thing.”
Asked why law enforcement agencies needed to agree to the policy before lawmakers moved forward, Sears said, “It's a little-used process now, and we want to try to improve it. To improve it, we try to get buy-in from stakeholders.”
There was also disagreement within the committee itself, Sears said, and the Legislature was running out of time before adjournment. Sears saw his options as either change the bill to a study, or let it die in committee, he said.
“Frankly, it was a bill we took up late because we had so many other priorities to deal with,” Sears said.
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