Civil asset forfeiture reform passed out of the North Dakota House on Wednesday, but a U.S. Supreme Court opinion has added a layer to its Senate path.
House members approved House Bill 1286 in a 57-33 vote. Rep. Rick Becker, R-Bismarck, introduced the bill to the House Judiciary Committee in January to eliminate the "perverse incentive" of "policing for profit." Forfeiture proceedings apply to property suspected of criminal involvement.
The bill reforms several aspects of current law. It requires a conviction and annual reporting of seized and forfeited property. The bill also raises the standard of proof to clear and convincing evidence and provides for interjurisdictional prosecution.
The bill includes exceptions as justification for forfeiture, including death, deportation or disappearance. A three-member subcommittee worked on the bill with input from prosecutors and law enforcement, who oppose a conviction requirement due to certain defendants who abscond and difficulty in prosecuting multijurisdictional crimes.
But a new dimension entered the debate over the bill on Wednesday.
The U.S. Supreme Court issued a unanimous opinion Wednesday that the Eighth Amendment on excessive fines applies to states' forfeitures under the Fourteenth Amendment's due process clause.
The high court heard the case from an Indiana man who argued disproportionality in the forfeiture of his $42,000 vehicle allegedly used to traffic heroin, a drug crime with a $10,000 maximum fine.
Interestingly enough, proportionality is an element of the bill's reform for North Dakota forfeiture. But it's unclear what the opinion may mean for the bill.
Rep. Pat Heinert, R-Bismarck, urged House lawmakers to pass Becker's bill to the Senate to further address the "fresh news" of the opinion.
"However, I am still voting red," the former Burleigh County sheriff said.
Sen. Diane Larson, R-Bismarck, who chairs the Senate Judiciary Committee, said she will study the opinion and amended bill over the break from crossover, when passed bills change chambers.
North Dakota Attorney General Wayne Stenehjem is "currently reviewing the opinion," according to his office.
House Judiciary Committee members have expressed concerns over a quick death in the Senate for the bill due to law enforcement opposition over the conviction requirement. Rep. Terry Jones, R-New Town, who carried the bill Wednesday, has said he has further amendments that may enter through the Senate side.
Becker has said he will bring an initiated measure for reform in 2020 if the bill fails. His 2017 bill failed with zero votes in the Senate after passing the House.
Larson said she won't recoil from "the threat" of an initiated measure.
"I'm going to look at trying to make good law. That's all," she told the Tribune after the House vote.