The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Monday, the Justice Department suspended its abusive "equitable sharing" asset forfeiture program, which incentivizes state and local governments to seize the property of criminal suspects—including many who have never even been charged with any crime, much less convicted. The program enables state law enforcement agencies to get around state law limitations on asset forfeiture, and thereby seize more assets, keeping some 80% of the value for themselves.
Asset forfeiture abuse has inflicted enormous harm on many innocent people, particularly the poor, who are often unable to effectively challenge the seizure of their property. In some states, property owners are given little or no opportunity to challenge the seizures, and law enforcement agencies are able to hold on to the assets for many months without even giving the owner a hearing, a practice that violates the Due Process Clause of the Fourteenth Amendment. In recent years, asset forfeiture abuse—once of interest mainly to libertarians and property rights activists—has attracted widespread attention across the political spectrum including major articles in the New York Times and Washington Post.
Unfortunately, the Justice Department did not suspend the equitable sharing program because they concluded it was unjust and unconstitutional, but only because of budget cuts. They hope to restart it in the future:
"While we had hoped to minimize any adverse impact on state, local, and tribal law enforcement partners, the Department is deferring for the time being any equitable sharing payments from the Program," M. Kendall Day, chief of the asset forfeiture and money laundering section, wrote in a letter to state and local law enforcement agencies.
In addition to budget cuts last year, the program has lost $1.2 billion, according to Day's letter. "The Department does not take this step lightly," he wrote. "We explored every conceivable option that would have enabled us to preserve some form of meaningful equitable sharing. … Unfortunately, the combined effect of the two reductions totaling $1.2 billion made that impossible."
The same letter states that "[b]y deferring equitable sharing payments now, we preserve our ability to resume equitable sharing payments at a later date should the budget picture improve," and indicates that they may try to resume payments later in Fiscal Year 2016. Thus, the fight to end equitable sharing may not be over.
Earlier this year, outgoing Attorney General Eric Holder imposed some limitations on the program, but his reforms, though a step in the right direction, stopped far short of actually ending it. Several state legislatures have recently adopted asset forfeiture reform laws that seek to curtail abuses, including Montana, New Mexico, and Minnesota.
UPDATE: I have made minor stylistic changes to this post.