Industry News & Updates

Is North Carolina’s Push to Ban Hemp a Ploy to Increase Civil Forfeiture Funding?

By Joshua Kraus

Seven months after the 2018 Farm Bill legalized regulated hemp production on a federal level, lawmakers in North Carolina are still trying to ban the newly permitted substance. Filed on March 20, 2019 and sponsored by Senator Brent Jackson (R-Sampson), the North Carolina Farm Act of 2019 (aka SB 315) would put a ban on smokeable hemp beginning December 1, 2020.

Supporters of the bill, which has finally reached the House of Representatives, argue that hemp legalization will prevent law enforcement officers from properly doing their jobs. Hemp is nearly indistinguishable from marijuana in look and smell, and because there is currently no field test to differentiate the two substances, officers fear they won’t be able to obtain probable cause to search for illegal drugs.

But some opponents of SB 315 suspect a more sinister motive. If hemp were to revert to illegal status, law enforcement would have carte blanch to a seize assets from anyone arrested for hemp.

This controversial process is called civil forfeiture and it allows law enforcement to take assets such as houses, cash, and vehicles from criminal suspects, even if they are not charged with a crime. While North Carolina requires due process before property can be taken, the state has seen numerous instances of civil forfeiture abuse, wherein a suspect struggled–or was unable–to reclaim their seized assets after charges were dropped.

This abuse is allowed to occur because North Carolina law enforcement agencies take advantage of the “equitable sharing” policy to circumvent the stringent state-level asset requirements and keep a portion of the forfeited assets’ proceeds. Under this policy, local law enforcement can petition a federal agency to adopt their investigation, or participate in a joint task force (or other multijurisdictional collaboration) with the federal government, and receive payments or distributions from the forfeiture proceeds.

And if a suspect was found to have committed no criminal wrongdoing, the process of recovering their seized property is extremely difficult. Often, they have to file a lawsuit and bear the expense on their own.

In 2018, North Carolina police departments received over $17 million in forfeiture funding from the federal government. While it is unknown what percentage of that funding that came from marijuana-related forfeitures, a figure from the Wall Street Journal provides some insight. The paper reported that from 2004 to 2014, the federal government netted over $1 billion in marijuana-related civil forfeiture funding.

Tyler J. Russell, an attorney who co-chairs the Hemp Law practice group at a Raleigh law firm, believes that expanding the scope of civil forfeiture “is part of the real, underlying reason for push back against the hemp industry and smokeable hemp products.” In a letter he sent to North Carolina’s House judiciary committee urging members to stand against the bill, he explained how the bill’s broad definition of “smokeable hemp” could invalidate other provisions of the state’s permanent hemp program.

“What if a farmer grows and harvests her hemp crop, but does not immediately have a processor-buyer available to purchase the entirety of that crop at the time of harvest?” Russell writes in his letter. “Will we subject the farmer to potential criminal prosecution and seizure of her assets for simply drying, curing, and storing her crop until it can be sold to a lawful buyer at a later time?”

If law enforcement could reasonably argue that the cured and dried flower material is intended to be “smokeable hemp,” farmers could be forced to defend their intended use of hemp in court to avoid criminal charges and recover wrongfully seized assets.

“Conceivably, any part of the hemp plant that contains even a trace amount of THC (even amounts well below the Federally defined THC level for hemp) can allow for the introduction of THC into the human body by inhalation of smoke–thus, making it smokeable hemp and illegal,” Russell says.

But farmers are certainly not the only ones who could face these challenges. Law enforcement officials can obtain probable cause for searches and seizures if there is a strong odor of marijuana emanating from a vehicle or home. As hemp and marijuana share a distinctive smell, this thrusts a lot of hemp users in the cross-hairs.

“This sets the stage for potential abuse in the context of probable cause and asset seizures,” Russell says. “Not all officers abuse this probable cause mechanism, and there are certainly valid and lawful searches and seizures that occur on a daily basis. But the potential for abuse is real.”

Law enforcement agencies have argued they would lose critical department funding without the tool of civil forfeiture at their disposal. But Russell disagrees.

“The reality is that all businesses face budgeting shortfalls from time to time and they must make decisions that prioritize their ongoing efforts and spending. Some things do not make the cut. If there were shortfalls on items that are truly necessary for public safety and protection, I feel sure that our government would find a way to bridge that gap.”

While the debate still continues over SB 315, another bill is pending in the House. Filed just five days after SB 315, SB 352 proposes the same sale and possessions charges as its predecessor, but also classifies smokeable hemp as marijuana, a Schedule VI controlled substance.

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