Force awakens as asset-forfeiture plunder is threatened
The Justice Department gave civil liberties advocates an early Christmas present last week when it announced that it would be suspending indefinitely its “equitable sharing” asset forfeiture program, which notoriously allowed state and local police agencies to bypass restrictions on forfeiture by partnering with federal agencies.
Civil asset forfeiture allows law enforcement agencies to seize cash or property without convicting someone of a crime — and oftentimes without even charging them with a crime. Since police often get to keep the proceeds they appropriate, they have a perverse incentive to engage in such seizures without regard to whether justice is being done, leading critics to dub the practice “policing for profit.” These incentives are enhanced by federal rules that offer local agencies greater cash awards and more lax standards of evidence.
California state law, for example, allows local law enforcement agencies to keep 66.25 percent of the proceeds from their civil asset forfeiture proceeds, but by “partnering” with federal law enforcement agencies, they can receive up to 80 percent of the proceeds from the feds.
The DOJ’s Assets Forfeiture Fund has grown exponentially over the years, from $94 million in 1986 to nearly $500 million in 2001 to $4.5 billion in 2014. From 2000-13, the DOJ paid out $4.7 billion in forfeiture proceeds to state and local agencies, according to a recent report from the Institute for Justice.
But in response to $1.2 billion in cuts to the DOJ’s Asset Forfeiture Program, the agency said it will be “deferring” equitable-sharing payments as a cost-cutting measure.
Six law enforcement groups fired off a letter to President Obama in response “to express our profound concern over the decision,” which, they complained, “will have a significant and immediate impact on the ability of law enforcement agencies throughout the nation to protect their communities and provide their citizens with the services they expect and deserve.”
This fear-mongering response is rather telling. “Law enforcement revealed that its true interest in forfeiture is policing for profit — not public safety,” said Lee McGrath, legislative counsel for the Institute for Justice. “The recently enacted Consolidated Appropriations Act does not stop police and prosecutors from chasing criminals. They’re frustrated because Congress put on hold their chasing cash.”
“Many police, sheriffs and prosecutors want to circumvent state laws because outsourcing forfeiture litigation to the federal government is lucrative,” McGrath added. “State lawmakers should enact an anti-circumvention provision that respects federalism and refocuses law enforcement’s attention on stopping crime by allowing only seizures greater than $50,000 to be forfeited under federal law.”
As welcome as the DOJ’s suspension of the equitable-sharing program is, it is only a temporary policy change, and one the agency made out of desperation, as its statement on the matter makes clear: “The Department remains committed to the program and to the state, local and tribal partners that are integral to its success. We will take all appropriate and necessary measures to minimize the impact of the rescission and reinstate sharing distributions as soon as practical and financially feasible.”
In light of widespread abuse of civil asset forfeiture, and federal rules that allow local law enforcement agencies to circumvent state laws restricting its practice, Congress should adopt measures such as Republican presidential candidate and Sen. Rand Paul’s S.255, the Fifth Amendment Integrity Restoration (FAIR) Act of 2015, to put a permanent end to equitable sharing.
Reprinted from the Orange County Register
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