Center Warns of Litigation in Effort to Unionize Home Care Professionals

Government and Unions Must Comply with New Legal Realities

As nation moves toward freedom, Rhode Island seeks to increase government control over our lives

Political Money & Power Grab by Unions Would Threaten Patient Safety

FOR IMMEDIATE RELEASE: July 26, 2018

Providence, RI – The Rhode Island Center for Freedom & Prosperity warns SEIU and the state government that it could face legal peril if they do not fully comply with the new federal restrictions expected to be in place this fall, as it pertains to the attempted unionization of the home care industry.

“The landmark Janus decision by the US Supreme Court, combined with the expected implementation of the Medicaid Provider Reassignment Regulation Proposed Rule by the federal government, means public employees can no longer be forced to support the political agenda of their designated union. It also means the government can no longer aid unions in their attempt to skim dues from precious Medicaid dollars, intended for the care of our loved ones.” explained Mike Stenhouse, CEO for the Center.

Stenhouse, earlier this month, attended a national symposium in Washington, DC, where it was highlighted that many legal organizations are actively looking for precedent-setting lawsuit cases if unions or their government allies do not comply with the new restrictions on how government unions may collect dues.

Outrageously, in the past and for now, federal dollars earmarked for home care services, could have dues automatically siphoned-off by the state government unions from workers’ paychecks, then transferred to the unions, with some of the funds ending-up in the political campaign coffers of SEIU. If the proposed rule is enacted, 100% of the allocated home care funding must first go to the workers; and it would then be up to the unions to collect dues – on their own – from those who freely choose to join.

“It’s a whole new ballgame,” continued Stenhouse. “And history has demonstrated in other states, unions and their bought-and-owned politician friends, will seek to bend the rules to their advantage. However, many of us are now on watch, and doing so could lead to serious legal ramifications.”

Earlier this summer, after a major push by SEIU and other progressive activists, legislation  was rammed through the General Assembly and signed by the Governor, that would transfer control of the home care services industry from the private sector to the government and its union allies.

The legislation would seek to lure home care workers, most of whom are now employed under a successfully operating private ‘agency’ system, to register with the government, becoming quasi-public employees, with their names and other personal information then to be turned over to SEIU labor bosses for the purposes of unionization efforts. A very similar approach was taken in 2013 to unionize the home child care industry; since then, union negotiated – and taxpayer funded – costs to support this industry have risen dramatically.

The Rhode Island Partnership for Home Care, which oversees most of these private agencies, believes that government-run home care would destabilize the industry.

“This is a blatant money and power grab by unions that would crush a smoothly performing private agency system that is providing high quality home care to elderly, Medicaid, and other patients; and essentially turn over control of this industry to overly politicized and incompetent government bureaucrats,”said Stenhouse in June. “The training standards and strict oversight now required of nursing and other home care professionals would be greatly diminished. Why would we want to put government in between patients and their home care service providers?”

The Center also pointed out the incongruity of this legislation and the direction that the nation is heading, following landmark Janus decision, which would end the forced unionization and fee payments of public employees. “Once again, while America is moving towards more freedom and less governmental control over our lives, Rhode Island wants to move in the opposite direction, consolidating centralized-control and planning under the political elite and their special-interest allies,” concluded Stenhouse.

Media Release: Jobs & Opportunity Index June 2018

Jobs & Opportunity Index (47th in JOI) Employment Without Profit June 2018

Providence, RI – Once again, Rhode Island’s positive numbers related to employment weren’t enough to get the Ocean State out of 47th place on the RI Center for Freedom & Prosperity‘s Jobs & Opportunity Index (JOI). However, the Freedom Factor, which gauges Rhode Islanders’ employment against reliance on welfare, did improve by one spot, to 41st.
Overall, seven of the 12 data points of the index changed for this iteration. However, data for SNAP (food stamps) has still not changed for Rhode Island since January 2017, owing to the failure of the Unified Health Infrastructure Project (UHIP) to work as advertised.
 
“In this month’s report, we are greatly concerned that, despite increased employment, Rhode Islanders’ personal income number is actually down by $307 million,” said the Center’s research director, Justin Katz. “That state and local taxes still managed to increase by $53 million is an additional red flag.”
Despite an improvement in rank on the Freedom Index, Rhode Island’s JOI number lost ground against the  U.S. average and is even farther behind the average for New England.
Additional charts and details of each of JOI’s three sub-factors can be  viewed here.
Jobs & Opportunity Index June 2018

Jobs & Opportunity Index (JOI), June 2018: Employment Without Profit

Rhode Island’s 47th place ranking on the Rhode Island Center for Freedom & Prosperity’s Jobs & Opportunity Index (JOI) remains intact. However, of the seven (of 12) datapoints that were updated for the June report, only the three related to Bureau of Labor Statistics jobs and employment research were positive. Additionally, SNAP (foodstamp) data remains unchanged for Rhode Island because of “system reporting issues” since January 2017.

On the positive side, employment was up from the first-reported number for May by 1,631, while labor force was up 860. The larger growth of employment than labor force translated into a drop of the unemployment rate to 4.3%. RI-based jobs increased by 2,100.

On the negative side, Medicaid enrollment increased 956. Annualized personal income (including investments) fell $307 million, while state and local taxes increased $53 million. Rhode Islnad was one of only four states to see personal income actually fall with the latest report.

These discouraging results, however, were not enough to bring down any sub-index rankings, and the Freedom Factor went up (see below).

The first chart shows RI still in the last position in New England, 47th on the in the country on the Jobs & Opportunity Index June 2018. New Hampshire still leads the region, but fell to 3rd place, nationally, with Utah joining Wyoming in the top 2. Every other New England state held steady, with Maine at 15th, Vermont at 21st, Massachusetts at 34th, and Connecticut at 37th.

Jobs & Opportunity Index June 2018

The second chart shows the gap between RI and New England and the United States on JOI. The third chart shows the gaps in the official unemployment rate. In all cases, the Ocean State lost ground.

Jobs & Opportunity Index June 2018

Results for the three underlying JOI factors were:

  • Job Outlook Factor (optimism that adequate work is available): RI remained 22nd.
  • Freedom Factor (the level of work against reliance on welfare programs): RI improved one place,
    to 41st.
  • Prosperity Factor (the financial motivation of income versus taxes): RI remained 47th.

Click here for the corresponding employment post on the Ocean State Current.

The Janus case could provide right-to-work protection for all public employees in the country. Right-to-work means a union cannot get a worker fired for not paying dues or fees.

STATEMENT: Center Applauds SCOTUS Ruling on Janus case; Public Education to Benefit

More Worker Freedom From Janus Case Will Lead to Reduction in Union Power

Public Education Should be Greatest Beneficiary of Janus Case

Providence, RI — According to the Rhode Island Center for Freedom & Prosperity, today’s landmark decision in the Janus case, which grants workplace freedom to public employees, means that public unions will have significantly less power and money to block legislation and influence elections. “The greatest public benefit will be improvement in public education,” said Mike Stenhouse, the Center’s CEO. “Many education reforms that would improve schools in disadvantaged communities are prevented by union collective bargaining agreements. If unions are no longer able to force teachers who disagree with them to fund their bargaining positions, unions will have less power to impose ineffective policies into contracts.”

#WorkerFreedom

Jobs & Opportunity Index (JOI), May 2018: What There Is Is Positive

Although Rhode Island remained in 47th place on the RI Center for Freedom & Prosperity’s Jobs & Opportunity Index (JOI), the four (of 12) datapoints that were updated for the May report were positive. Unfortunately, one datapoint was not updated for Rhode Island even though it was updated for every other state. The latest SNAP (foodstamp) table from the federal Food and Nutrition Service added a new footnote highlighting that “system reporting issues” have meant no new RI numbers since January 2017.

Turning to the numbers that are available: Employment was up from the first-reported number for April, by 1,489, while labor force was up 1,117. RI-based jobs increased, as well, by 1,000. Medicaid enrollment improved from the previously reported number, with a decrease of 1,281.

The first chart right shows RI still in the last position in New England, 47th in the country. Regional leader New Hampshire is still in 2nd place, nationally, behind Wyoming. Maine made progress toward the nation’s top 10, up two steps to 15th, while Vermont remained in 21st place. Massachusetts managed to return to the 34th slot that it had lost last month. Meanwhile, Connecticut held on to 37th.

Rhode Island remained in 47th place on the Jobs & Opportunity Index May 2018. Unfortunately, one datapoint was not updated for Rhode Island even though it was updated for every other state. The latest SNAP (foodstamp) table added a new footnote highlighting that “system reporting issues” have meant no new RI numbers.

The second chart shows the gap between RI and New England and the United States on Jobs & Opportunity Index May 2018. In both cases, the Ocean State gained a little ground. The same was true of the official unemployment rate, shown in the third chart.

Rhode Island remained in 47th place on the Jobs & Opportunity Index May 2018. Unfortunately, one datapoint was not updated for Rhode Island even though it was updated for every other state. The latest SNAP (foodstamp) table added a new footnote highlighting that “system reporting issues” have meant no new RI numbers.

Rhode Island remained in 47th place on the Jobs & Opportunity Index May 2018. Unfortunately, one datapoint was not updated for Rhode Island even though it was updated for every other state. The latest SNAP (foodstamp) table added a new footnote highlighting that “system reporting issues” have meant no new RI numbers.

Results for the three underlying Jobs & Opportunity Index May 2018 factors were:

  • Job Outlook Factor (optimism that adequate work is available): RI improved one place, to 22nd.
  • Freedom Factor (the level of work against reliance on welfare programs): RI remained 42nd.
  • Prosperity Factor (the financial motivation of income versus taxes): RI remained 47th.

Click here for the corresponding employment post on the Ocean State Current.

Civil forfeiture laws represent one of the most serious assaults on cars, cash, and other private property by government today.  According to the Institute for Justice, the Ocean State received a D- for its asset forfeiture laws. Please watch the new asset forfeiture video from the Center now.

Why Rhode Island Needs Civil Asset Forfeiture Reform

“It is absolutely mind-boggling… that people that feed you, in one of the most historical oldest industries in this country, can’t go to sea and land that fish that feeds you without being treated like criminals,” said Richard Fuka, President of RI Fishermen’s Alliance

Civil forfeiture laws represent one of the most serious assaults on cars, cash, and other private property by government today.  According to the Institute for Justice, which produces a state-by-state report card, the Ocean State received a D- for its asset forfeiture laws. Please watch the new asset forfeiture video from the Center now.

Despite some positive numbers, Rhode Island couldn’t shake its 47th place ranking on the Rhode Island Center for Freedom & Prosperity’s Jobs & Opportunity Index (JOI) in April 2018

Jobs & Opportunity Index (JOI), April 2018: The Bottom of the Rising Tide

Despite some positive numbers, Rhode Island couldn’t shake its 47th place ranking on the Rhode Island Center for Freedom & Prosperity’s Jobs & Opportunity Index (JOI) in April 2018, and even slipped on one of the three subfactors of the index. On the Job Outlook Factor, which gauges Rhode Islanders’ optimism about job opportunities, the Ocean State fell five spots, to 22nd in the country. Overall, eight of the 12 data points of the index changed for this iteration.

Employment was up from the first-reported number for March, by 975, while labor force was up 842. RI-based jobs increased, as well, by 1,000. Medicaid enrollment improved from the previously reported number, with a decrease of 907, while SNAP (food stamps) showed no change. (Reporting problems related to the Unified Health Infrastructure Project may be an issue, here.)

Alternative measures of unemployment were also updated. Long-term unemployment (15 weeks or more) fell a little, by 200 people, while significantly fewer people (1,300) say they are involuntarily working only part time. Another 800 Rhode Islanders say they are “marginally attached,” meaning that they would potentially like to work, although the data does not indicate whether this change of attitude represents a move toward or away from job searches.

The first chart at shows RI still in the last position in New England, 47th in the country. Regional leader New Hampshire is still in 2nd place, nationally, behind Wyoming. Maine and Vermont remained in place, at 17th and 21st, respectively. Again, Massachusetts fell one, to 35th, while Connecticut held on to 37th.

The second chart shows the gap between RI and New England and the United States on JOI. In both cases, the Ocean State lost a little ground. The same was true of the official unemployment rate, shown in the third chart.

Results for the three underlying JOI factors were:

  • Job Outlook Factor (optimism that adequate work is available): RI fell five slots to 23rd.
  • Freedom Factor (the level of work against reliance on welfare programs): RI remained 42nd.
  • Prosperity Factor (the financial motivation of income versus taxes): RI remained 47th.

Asset forfeiture laws represent one of the most serious assaults on private property by government today. While many might assume that these laws are directed at criminals, in reality simply being suspected or accused of a crime is sufficient for a state to take your property. Rhode Island is no different.

Asset Forfeiture Reform in Rhode Island

An Opportunity for Rhode Island to Lead the Way for Civil Rights, Responsible Government, and Conscientious Budgeting

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OVERVIEW

Civil forfeiture laws represent one of the most serious assaults on cars, cash, and other private property by government today.  While many policymakers and citizens might assume that these laws are directed at criminals, in reality simply being suspected or accused of a crime is sufficient for a state to take your property.  Rhode Island is no different.

The Attorney General’s description of our state laws provides some sense of perspective and context:

The Narcotics and Organized Crime Unit (NOCU) is “responsible for processing all narcotics, gambling, and racketeering-related asset forfeitures.  Proceeds from the sale of forfeited assets represent an important source of ongoing drug and crime suppression efforts of state and local police.  In 2016, the Unit opened 284 new forfeiture cases and disposed of 277 cases.  In total, the Unit seized $1,682,426 in cash and property and processed $979,700 in total cash and property forfeited.  Under Rhode Island General Law, assets obtained through illegal drug operations are forfeited and distributed among state and local police, the Office of Attorney General, and the Department of Behavioral Healthcare, Developmental Disabilities & Hospitals (BHDDH). As prescribed by statute, 20 percent of seized proceeds shall be provided to the Office of Attorney General to be used for further drug-related investigations and prosecutions, 70 percent is divided among the state and local police departments proportionately based upon their contribution to the investigation, and 10 percent provided to BHDDH to support substance abuse treatment programs.  Last year [2016], $449,206 in “cash” was distributed to the Rhode Island State Police and local police departments, $64,172 to BHDDH, and $128,344 to the Office of Attorney General. Another $283,380 worth of forfeited property was distributed to state and local law enforcement agencies for use or auction.” [i]

While the original good intent of such forfeiture laws cannot be disputed — removing the ill-gotten gains, resources, and instruments of those committing crimes from their reach — the experience of many years has drawn attention to needed reform in the authorizing statutes.  Since 2014, 25 states and the District of Columbia have passed forfeiture reforms. [ii]  Reform for Rhode Island is long overdue.

General Recommendations
  • Improve administration of forfeiture programs in order to increase the credibility of law enforcement as they conduct permitted seizures.
  • Build in transparency around asset forfeiture actions so that elected officials and citizens have the data necessary to provide oversight and improve the processes. This includes keeping track of how much the state seizes, whether the citizens are ever convicted of a crime, and how much money comes in from those seizures.
  • Local governments should not profit from asset forfeiture and should be held accountable if they abuse the process.
  • We should avoid seizures from innocent property owners and co-owners and build in legal protections before the state takes final title to property.
  • Most importantly, we must raise the bar and provide prompt and streamlined legal procedures to protect the property rights of innocent owners.
INTRODUCTION

This paper is intended to provide a detailed analysis of legislation proposed in the 2018 session of the Rhode Island General Assembly that would significantly reform those provisions of Rhode Island law which allow law enforcement agencies to seize money and property from criminal suspects and retain those monies for their own purposes.

Current Rhode Island law lets the state take your property on the basis of no more than suspicion.  If you don’t hire a lawyer and file a lawsuit against your own property, you soon lose it.  Worst of all, Rhode Island allows the law enforcement agency that seized your property to keep the majority of it to supplement their own budgets, creating a perverse incentive to violate your due process rights.

By way of example, and as noted in recent Senate Judiciary Committee testimony by Assistant Public Defender Michael A. DeLauro:

A leading Rhode Island Supreme Court decision amply illustrates the need for reform. In State v. Grullon, 783 A.2d 928, 929 (R.I. 2001) the defendant was arrested for and charged with unlawful delivery of a controlled substance. At the time of his arrest he was in possession of $2183.00 that was to be used in moving his family from New York City to Providence. Immediately after his arrest the state initiated successful forfeiture proceedings. After a jury waived trial in which the defendant was found “not guilty” of unlawful delivery of a controlled substance he sought to undo the forfeiture. In denying the request both the Superior and Supreme Courts relied on technical grounds holding that 1) it was not within the province of the court to do so and 2) the forfeiture did not violate due process and the Eighth Amendment’s protection against the imposition of excessive fines.[iii]

The Rhode Island Center for Freedom & Prosperity is leading a coalition to raise the bar for asset forfeiture and adopt better practices.  As a part of that effort the Hopkins Center has researched model legislation and best practices in the other states that have adopted reforms, including those adopted by our fellow New England State of New Hampshire.

FORFEITURE 101: GUILTY UNTIL PROVEN INNOCENT

At its most basic level, asset forfeiture is a trade-off between the demands of policing and the civil rights of citizens. [iv]  No one objects to taking weapons from criminals caught in the act, seizing the stolen goods they hold unjustly, or making them pay restitution for the harms inflicted as they absconded with their ill-gotten gains.  At the same time, no one would question the right of innocent owners to be secure in their property.  The idea that the government cannot seize your assets on a whim — that “due process” is required — is a bedrock principle of our constitutional democracy.  Asset forfeiture lives in a grey area between those competing ideals, and from time to time, the pendulum of freedom swings a bit wide.

Pirates, Prohibition, and Scarface: The Birth of a Problem

Chip Mellor gives an excellent summary of the origins of asset forfeiture laws in American law: [v]

American forfeiture law arose from the British Navigation Acts of the mid-17th century. Passed during England’s vast expansion as a maritime power, the Acts required that any ships importing or exporting goods from British ports fly under the British flag. If the Acts were violated, the ships or the cargo could be seized and forfeited to the crown regardless of the guilt or innocence of the owner. The British laws focused on seizing the assets because they could punish violations of the law even when they could not capture the violators. Using the British statutes as a model, the first U.S. Congress passed forfeiture statutes to aid in the collection of customs duties, which provided up to 90 percent of the finances for the federal government during that time.

The U.S. Supreme Court upheld early forfeiture statutes. Most important to understanding these early cases is the underlying rationale for permitting civil forfeiture even against innocent property owners. The Court reasoned that civil forfeiture was closely tied to the practical necessities of enforcing admiralty, piracy and customs laws. Such forfeiture permitted courts to obtain jurisdiction over property when it was virtually impossible to obtain jurisdiction over the persons guilty of violating maritime law. Justice Joseph Story wrote that the “vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attachés, without any reference whatsoever to the character or conduct of the owner.” Justice Story justified these forfeitures “from the necessity of the case, as the only adequate means of suppressing the offense or wrong, or insuring an indemnity to the injured party.”

Although asset forfeiture law saw increased use during the Civil War and then again during Prohibition, it wasn’t until the 1980s and the heyday of the war on drugs that forfeiture became such a powerful weapon in the government’s arsenal. The fear of drug lords in mansions with pet tigers and machine guns ran rampant, and as with many erosions of civil rights, fear led to calls for more authority and more discretion to be placed in the hands of law enforcement.  And as with most such erosions, time has tended to demonstrate that, once in hand, the government will take such power and discretion to its limit.

RHODE ISLAND STATUTES: A FAILING GRADE FOR JUSTICE

The data in Rhode Island demonstrates that maxim fairly clearly.  According to the Institute for Justice, which produces a state-by-state report card on the topic, “Rhode Island has awful civil forfeiture laws.” [vi]  That blunt assessment and the D- grade award our state is reflective of at least three important factors in the existing law:

  1. Law enforcement need only show probable cause to seize property, but for property to be returned in Rhode Island, it is up to owners to prove by a preponderance of the evidence that their property is not forfeitable. (“Guilty until proven innocent,” as it were.)
  2. Innocent owners making claims also bear the burden of proving that they had no involvement in the illegal use of their property in order to recover it.
  3. Rhode Island law enforcement agencies retain 90% of all forfeiture proceeds, a generous incentive to aggressively wield their forfeiture powers.[vii]

Social Injustice

Another unfortunate feature of asset forfeiture schemes generally is that they have disparate impacts with regard to race and income.  Using data collected by Lucy Parsons Labs, a Chicago non-profit that focuses on police accountability, the Reason Foundation mapped the addresses where asset seizures took place in Cook County, Illinois.  The results were not surprising.

“This data shows what we already know, that the seizures tried by CCSAO overwhelming steal the possessions of poor people,” Lucy Parsons Labs said in a statement to Reason. “The data shows that the seizures are clumped in the South and West side, overwhelmingly African-American neighborhoods.”[viii]  (Emphasis added.)

Law enforcement agencies in Rhode Island are required to report their forfeitures to the state treasurer and attorney general, who then aggregate the data and provide annual reports to the legislature.  Disappointingly, these reports are not available online.  Law enforcement agencies reportedly seized more than $8.3 million through asset forfeiture proceedings between 2009 and 2014, averaging almost $1.4 million per calendar year.

The current asset forfeiture structure in Rhode Island not only demeans the law and our judicial system, it demeans the profession for all of law enforcement.  Our laws are bad for good cops.

A SOLUTION: THE ASSET FORFEITURE PROCESS AND PROPERTY RIGHT PRESERVATION ACT

The reform act now pending before the Rhode island General Assembly was drafted with three key goals in mind:

  1. Add well-defined structure to the administration of forfeiture programs in order to increase the credibility of law enforcement as it undertakes permitted seizures
  2. Avoid seizures from innocent property owners and remove financial incentives that would encourage overreach in this area
  3. Make the seizure process transparent so that elected officials and citizens have the data necessary to provide oversight and improve
    the processes
Key Provisions

Restore Revenue Oversight to the General Assembly

Current Rhode Island law has none of the 10 national best practices for accounting for forfeiture fund spending. [ix]  This means that we have the lowest possible rating for accountability for spending of seized funds.  While many states are adding oversight requirements for local departments, horror stories of uncontrolled spending abound.  The Institute for Justice compiled a list of the six “craziest” expenditures that can be viewed on YouTube[x] but bear summarizing here:

#6  Steak, booze, and CeeLo Green tickets

#5    Tequila, rum, kegs of beer, and a margarita machine

#4  A six-day law conference (junket) in Hawaii

#3  A $90,000 Dodge Viper

#2  A $35,000 inmate-built “party house”

#1  $40,000 for drugs and prostitutes

Revenue from seizures is in part paid directly to the local law enforcement agencies conducting the seizures.  While reasonable as a means of rewarding good policing, this system also carries the risk of creating a financial incentive to abuse the process.  The reform act would direct all funds seized under state law to the general treasury, eliminating one of the last vestiges of what is generally referred to as a “restricted receipt” account system, consistent with broad state reform efforts undertaken on this front in the past.  Essentially, the move away from restricted receipt accounts returns budgeting authority to the General Assembly, rather than creating slush funds with little or no accountability.

These off-budget accounts lead to waste in the worst cases, but even in the best cases, they end-run the authority of the legislature and leave the spending decisions to the whims of local agencies.  A more-conscientious approach not only retains the checks and balances of legislative oversight of budgeting, but also helps avoid the egregious and embarrassing expenditures that so often make the news and demean the reputations of law enforcement agencies everywhere.

Protect Innocent Property Owners

Under the current system, innocent Rhode Islanders must live in fear of losing their cars or their homes because little Johnny was caught selling pot to his friends in the family minivan or his bedroom.  Reforming the financial incentives as noted above reduces the risk of such overreach by law enforcement and leaves the spending discretion that our forfeiture program provides squarely in the hands of the legislature.

This shift in incentives, coupled with procedural protections omitted from early asset forfeiture laws, creates a strong set of defenses for innocent property owners.  The legal process is spelled out clearly, deadlines and timing are addressed in detail, and innocent owners promptly get to make their cases to the court.

The model case for why these rights need to be enshrined in law is that of Anthonia Nwaorie.  As recently reported by the Washington Post, Ms. Nwaorie, a 59-year-old registered nurse, was traveling to Nigeria to open a medical clinic and had $41,000 in cash she had saved for that purpose seized for no reason other the fact that she was carrying a large amount of cash.  Six months later she has yet to get it back, in part because law enforcement demanded that she first sign a legal release protecting them from lawsuits. [xi]

Data Collection and Transparency

The reform act is not intended to weaken this valuable law enforcement tool.  In order to ensure that it is being used properly and judiciously and to further allow the legislature to monitor its effects and reach over the years to come, the act provides detailed data collection and reporting guidelines.

These data points will allow us to compare Rhode Island to other states that are collecting similar data and to assure ourselves that these tools are being used, but not abused.  Transparency, particularly in the realm of law enforcement, is vital toward establishing trust in government and a feeling withing communities that all are being treated fairly.  The law should be blind, but the legislature should not. [xii]

Outline

An outline and brief description of each substantive sections of the model legislation is provided in Appendix A.

CONCLUSION

The criminal justice system today looks little like that of its predecessors in the common law or even the system created at the time of the birth of our country.  It is larger, more expansive, more expensive, and covers more conduct and more citizens than ever before.

But that does not mean that the fundamental aspects of criminal justice that serve to ensure a fair and just system for all citizens should be ignored.  In fact, quite the opposite.  A robust criminal justice system demands robust protections for innocent citizens, to ensure they are not unfairly caught up in the system.

Asset forfeiture reform would prevent unjust seizures from innocent citizens. It would protect citizens from overzealous law enforcement action and provide peace of mind for those taking part in wholly innocent and blameless — even admirable — behavior.  It would empower the legislature by restoring its right and proper budgetary authority over seized funds.  It would also make great strides toward building in protections for law enforcement that ensure their reputations, their professionalism, and their community support remain as solid as possible.

APPENDIX A: SECTION OUTLINE OF MODEL LEGISLATION

This outline is intended to serve as a handy guide to the substantive sections of the legislation and is not comprehensive or a complete list of provisions.

Section I

Chapter 1:  Title.

Chapter 2:  Definitions.

Chapter 3:  Purpose.

Chapter 4:  Property Subject to Criminal Forfeiture.

Chapter 5:  Exemption for cars of modest value.

Chapter 6:  Conviction and proof to a defined legal standard are required for seizure and forfeiture of assets.

Chapter 7:  Substitution of assets of the accused criminal trying to avoid forfeiture is allowed if the assets that would otherwise be subject are out of reach.

Chapter 8:  These laws provide the exclusive process for forfeiture in Rhode Island.

Chapter 9:  There is no joint and several liability in forfeiture that would allow a third party to have property seized.

Chapter 10: Seizure must generally be by court order.

Chapter 11: If the police are concerned about losing access to the property that should be seized, they can do so without a court order so as to avoid removal or destruction of the property by the suspect.

Chapter 12: Seizer of real property (a house) must be done by court order.

Chapter 13: Record keeping requirements are outlined.

Chapter 14: Government can’t force an innocent property owner to give up due process rights in order to get property back.

Chapter 15: The property owner can secure a bond or substitute property of equal value to get seized property back while waiting for trial.  This is particularly important for innocent owners who have business assets seized and would otherwise be prevented from earning a living.

Chapter 16: Provides a pre-trial hearing process in order to determine that a seizure was done legally.

Chapter 17: Details rules for discovery and trial procedure.

Chapter 18: Outlines trial procedure and requires the state to promptly give its reasons and justifications for seizure and forfeiture and provides clear proced-ural steps for the government to follow in order to complete the forfeiture.

Chapter 19: Allows a property owner to argue that the value of a seizure is disproportionate to the crime of which he or she was accused.

Chapter 20: Protects banks and other secured parties to the extent of their interests in seized property (for example, mortgages and car loans.)

Chapter 21: Protects innocent owners.

Chapter 22: Outlines appeal procedures.

Chapter 23: Describes the process for disposition of proceeds from forfeitures,
including restitution of victims, costs of police investigations, and the costs of the prosecution.

Chapter 24: Provides limits on retention or sale of property by law enforcement agencies.

Chapter 25: Places requirements for the prompt and complete return of the property of innocent owners.

Chapter 26: Limits the ability of law enforcement to end-run state due process protections by turning over seized property to the federal government.

Chapter 27: Allows innocent owners the right to recover attorney’s fees spent in fighting to get property back.

Chapter 28: Creates a process for returning the property of otherwise innocent owners who have been deported, and a process for abandonment of that property if no interested party can be identified.

Chapter 29: Creates penalties for violations of these laws.

Chapter 30: Makes clear that these laws preempt and local laws, rules, procedures, or practices.

Chapter 31: Severability of any provision found invalid.

Section II

Strikes the existing laws relating to asset forfeiture in Rhode Island, which have been replaced by the laws in Section I.

Section III

Provides that the legislation would take effect upon passage.


[i] Office of the Attorney General. 2016 Annual Report. Available at: www.riag.ri.gov/documents/2016AnnualReport.pdf (Accessed 5/14/18.)

[ii] Institute for Justice. “Civil Forfeiture Reforms on the State Level.” Available at: ij.org/activism/legislation/civil-forfeiture-legislative-highlights (Accessed 5/14/18.)

[iii] DeLauro, “Michael A. Written Testimony of Michael A DeLauro, Assistant Public Defender, Director of Training and Legislative Liaison, addressed to Senator Erin Lynch Prate, Chairwoman, Senate Judiciary Committee.” April 26, 2018.

[iv] This summary draws heavily from the “Policing for Profit” report published by the Institute for Justice, authored by Dick M. Carpenter II, Ph.D., Lisa Knepper, Angela C. Erickson and Jennifer McDonald, with contributions from Wesley Hottot and Keith Diggs. Available at: http://ij.org/report/policing-for-profit (Accessed 5/14/18.)

[v] Mellor, Chip. “Civil Forfeiture Laws and the Continued Assault on Private Property.” Forbes. June 8, 2011. Available at: www.forbes.com/2011/06/08/property-civil-forfeiture.html (Accessed: 5/14/18.)

[vi] Institute for Justice. “Rhode Island earns a D- for its civil forfeiture laws.” Available at: ij.org/pfp-state-pages/pfp-Rhode-Island (Accessed 5/14/18.)

[vii] Ibid.

[viii] Ciaramella, C.J. “Poor Neighborhoods Hit Hardest by Asset Forfeiture in Chicago, Data Shows.” June 13, 2017 Available at: reason.com/blog/2017/06/13/poor-neighborhoods-hit-hardest-by-asset (Accessed 5/14/18.)

[ix] Erickson, Angela C., Jennifer McDonald and Mindy Menjou. “Forfeiture Transparency & Accountability: Rhode Island Report Card.” Available at: ij.org/report/forfeiture-transparency-accountability/?state=US-RI (Accessed 5/14/18.)

[x] Institute for Justice. “The Top 6 Craziest Things Cops Spent Forfeiture Money On.” YouTube. January 31, 2014. Available at: www.youtube.com/watch?time_continue=6&v=n2iJ7UBODw8 (Accessed 5/14/18.)

[xi] Flynn, Meaghan. “She saved thousands to open a medical clinic in Nigeria. U.S. Customs took all of it at the airport.” Washington Post. May 9, 2018. Available at: www.washingtonpost.com/news/morning-mix/wp/2018/05/09/she-saved-thousands-to-open-a-medical-clinic-in-nigeria-u-s-customs-took-all-of-it-at-the-airport/?noredirect=on&utm_term=.55b319966e78 (Accessed 5/14/18.)

[xii] Plessy v. Ferguson, 163 U.S. 537, 559 (1896): “In view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”

We are pleased to join with dozens of our fellow think tank partners in support of keeping automobile prices low. California adopted statewide motor vehicle greenhouse gas emission rules in September 2004 to impose very strict limits on the emissions. We are calling on the EPA to revoke their special privileges.

Center Co-Signs National Coalition Letter to the EPA to Revoke the “California Waiver”

The Rhode Island Center for Freedom & Prosperity is pleased to join with dozens of our fellow think tank partners in support of keeping automobile prices low. California adopted statewide motor vehicle greenhouse gas (GHG) emission rules in September 2004 to impose very strict limits on the emission of CO2 from automobile tailpipes.  While the federal Clean Air Act (CAA) generally preempts states from adopting their own motor vehicle emission regulations, CAA Section 209(b) allows the state to petition for a California waiver from that prohibition.  If EPA grants such a waiver to California, other states may then adopt (without amendment, by legislation or executive order) the California regulatory regime.

In December 2005, California requested that EPA grant a waiver of preemption for its GHG regulations for automobiles.  In April, 2007, the United States Supreme Court, in Massachusetts vs. EPA, empowered EPA to regulate CO2 under the Clean Air Act.  As a result, the California waiver request came under active consideration at EPA.  The request was denied in 2008 by the George W. Bush administration.  However, in January 2009, the California Air Resources Board requested that EPA reconsider its denial.  In July 2009, the Obama administration granted California’s waiver request, clearing the way for California to implement its motor vehicle GHG regulations – and for other states to follow suit.

Currently, 13 States – Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington – and the District of Columbia have adopted California’s stricter automobile emissions standards.  In addition, nine – CT, ME, MD, MA, NJ, NY, OR, RI, and VT – have adopted California’s “zero emission vehicle” (ZEV) mandate.

Our state government, always looking for schemes to grab money from our pockets, has recently also become subservient to political correctness. This year, the hysteria to punish everything tobacco-industry related, shows how the progressive world of make believe can wreak havoc on RI’s economy with a new cigarette tax.

Article 4, Cigarette Tax and the Make Believe World of Political Correctness

Our state government, always looking for schemes to grab money from our pockets, has recently also become subservient to political correctness. This year, the hysteria to punish everything tobacco-industry related, shows how the progressive world of make believe can  wreak havoc on Rhode Island’s economy. Article 4 of the Governor’s proposed fiscal-year 2019 budget calls for yet another excise tobacco tax increase on cigarettes, to $4.50 per pack; a 534% increase since 2001, while pretending that there will be no adverse impact on low-income families or our state’s economy.

In the progressive-left fantasy world, all tobacco and vaping products would be abolished. But the reality is that tobacco products are legal, and tobacco users will continue to purchase related products at the lowest prices they can find.

Progressives pretend that poor Rhode Islanders would not disproportionately bear the burden of this regressive tobacco tax. In fact, low-income individuals use tobacco more often and spend more of their incomes on such products. This means less money for more-healthy items such as groceries, home heating, and other household goods.

Anti-tobacco fanatics also pretend that taxes on cigarettes are NOT a driving factor in determining retail store patronage, where smokers will also buy gasoline and other convenience items. It’s true, that to avoid high cigarette taxes, smokers will simply drive a few miles across state-lines and spend their money elsewhere. Many small business retailers, with almost one-third of their revenue derived from tobacco-related products, could be severely harmed.

Further, in their land of make believe, progressives fail to recognize the unintended consequence that high tobacco tax will also fuel an underground market of illegally smuggled and sold products. This real-life underground economy not only reduces state tax receipts, but leads to more illegal activity … with all of the associated costs of increased prosecutions and incarcerations.

Progressives also pretend that proven economic principles will not come into play; that the loss of disposable income, the retail sales losses, and the increased criminal justice costs would NOT further weaken our already fragile state economy.

They also pretend this added tax will give them more money to spend in the state’s budget. However, in the real world, the law of diminishing returns means that higher revenues from higher cigarette taxes are uncertain and unlikely. The total state intake from its 2005 cigarette tax of $2.46 per pack is virtually identical to its 2017 intake at $3.75 per pack, around $137 million per year. In reality, receipts actually decreased when the tax was raised, in many years.

Other related legislation this year is similarly based on make believe assumptions. Plans to increase taxes on vaping products, which are up to 95% less harmful than cigarettes for those who switch will not improve public health. Real-world research shows that high vaping taxes would disincentive use of “harm reduction” products that could dramatically improve societal health and decrease medical costs, including state Medicaid spending.

Dozens of such politically-correct inspired tax and regulatory policies, based on fantasy assumptions, have resulted in bottom 10 national rankings for our state when it comes to overall business climate, family prosperity, and population growth. Rankings that mean real Rhode Islanders are not realizing their potential. But the politically correct left cares to pretend such harms do not exist. Instead, they dismissively and exclusively care only about their own pretend agenda, while looking to punish anyone they don’t approve of.

It is our hope that state lawmakers, who still have time to think about the actual harm that higher tobacco and vaping taxes would cause, will make reality-based decisions later this spring. The real benefits of not increasing these taxes include; no new burdens imposed on the poor; the jobs and economic advantages of keeping RI retailers more competitive; the reduced criminal justice costs; a budget that does not rely on uncertain receipts; a society with fewer health problems; and the increased overall competitiveness of our state.

We do not live in a fantasy world. And the consequences of limiting or taxing free-choice … because some think they think they know better … mean that many others in the real world will be made to suffer.

This year, let’s stop making these same pretend and emotionally driven mistakes. When it comes to pretend thinking that it is a good thing to increase taxes on politically incorrect products, let’s put some reality-based thought into it for once.