The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Back in December, the Justice Department suspended its dangerous "equitable sharing" program, which helps state law enforcement agencies get around state law restrictions on asset forfeiture: the seizure of property from people who, in many cases, have never been convicted of any crime, or even charged with one. Sadly, the program is now back in force:
The Justice Department has announced that it is resuming a controversial practice that allows local police departments to funnel a large portion of assets seized from citizens into their own coffers under federal law.
The "Equitable Sharing Program" gives police the option of prosecuting some asset forfeiture cases under federal instead of state law, particularly in instances where local law enforcement officers have a relationship with federal authorities as part of a joint task force. Federal forfeiture policies are more permissive than many state policies, allowing police to keep up to 80 percent of assets they seize.
Letting law enforcement agencies keep the assets they seize creates dangerous perverse incentives, and often leads to the victimization of innocent people—so much so that the practice has attracted opposition from across the political spectrum. In some states, owners must wait many months or even years before they can even begin to challenge the seizure of their property, a particularly severe burden for relatively poor people, who are the most common victims of such practices. Even those owners who have committed a crime don't thereby deserve to have their property seized as a result, in addition to the usual punishment imposed on violators. There is no reason why an owner who happened to use, say, his car to commit Crime X should suffer the additional penalty of losing the car, while a criminal who committed the exact same offense without using a car will only suffer the usual fine or jail term associated with the offense.
Sadly, asset forfeiture has become so widespread that law enforcement agencies now use it to take more property than all the burglars in the entire United States. Something is obviously rotten in the legal system when cops steal more property than this large subset of actual robbers.
In recent years, several states have adopted strong reform laws curbing asset forfeiture abuse. But such state reforms will not be fully effective so long as law enforcement agencies can use federal equitable sharing to get around them. As one of his final official acts before stepping down, Attorney General Eric Holder imposed some constraints on equitable sharing last year. But his reforms fell far short of terminating the program entirely. It is long past time that we get the federal government completely out of the business of helping state cops function as robbers.