Well, it was fun while it lasted.
Last December, civil liberties advocates cheered the Department of Justice’s announcement that it was indefinitely suspending its equitable sharing asset forfeiture program due to fiscal constraints. This week, unfortunately, the Department of Justice lifted the suspension and resumed payments to local police departments.
Civil asset forfeiture allows the government to seize property and cash from Americans, without charge or trial, on the mere suspicion of wrongdoing. In most jurisdictions, the seizing agency gets to keep some or even all of the proceeds, creating a clear profit motive for the agencies to seize property.
Equitable sharing is a federal program which allows state and local law enforcement to seize property under federal, rather than state, forfeiture law. Law enforcement agencies in states with more restrictive forfeiture laws are thus able to get around those state restrictions by participating in the federal program.
The equitable sharing program also provides an 80% kickback to the seizing local agency, which is a larger share of the proceeds than many states allow. As one might expect, the more a state restricts the use and abuse of civil asset forfeiture, the more state and local police tend to rely on the federal program instead.
In short, equitable sharing creates a federal incentive for law enforcement to sidestep state law and chase profits under federal law instead.
While then‐Attorney General Eric Holder imposed some small rerforms on the equitable sharing program on his way out of office, the program still rakes in hundreds of millions of dollars a year. Given this week’s announcement, the chances that the Obama Administration will take further steps to rein in forfeiture abuse in its final year seem slim.
Nothing, however, prevents state governments from asserting their sovereignty by restricting their law enforcement agencies from participating in the federal program.
This morning I discussed the resumption of equitable sharing with Darpana Sheth of the Institute for Justice:
For more on civil asset forfeiture, check out the Institute for Justice’s exhaustive survey of forfeiture laws and abuses, Policing for Profit.
Also check out Cato’s explainer on civil asset forfeiture.