On Friday, a bipartisan group of leaders from the United States Senate and House Judiciary Committees sent a letter calling on Attorney General Eric Holder to abandon the Department of Justice’s “Equitable Sharing” program, which has distributed billions of dollars of civil asset forfeiture revenues to state and local law enforcement agencies. The letter also calls for “additional procedural safeguards” to protect the blameless.
Civil forfeiture is a law enforcement tool that authorizes the seizure of property that is allegedly related to a crime—even if the owner has not been charged with or convicted of a crime. States and the federal government have laws on the books authorizing these seizures and detailing how the proceeds should be spent. Under the federal Equitable Sharing program, state and local law enforcement personnel can partner with the federal government by referring potential forfeiture cases to federal authorities and then receive a cut of any resulting civil forfeiture proceeds, up to 80 percent.
Local law enforcement agencies like this program because, in addition to the fact that federal authorities end up doing much of the legwork, federal civil asset forfeiture law is often more permissive than state forfeiture laws, providing local law enforcement authorities greater flexibility regarding whether they can keep and how they can spend any resulting forfeiture funds. In other words: Local and state law enforcement officials can, and sometimes do, use the federal Equitable Sharing program to circumvent more stringent state forfeiture laws.
While acknowledging that civil forfeiture has a place in law enforcement, Representatives Jim Sensenbrenner (R–WI) and John Conyers (D–MI) and Senators Chuck Grassley (R–IA) and Mike Lee (R–UT) expressed their skepticism of the federal program. “We are concerned that these seizures might circumvent state forfeiture law restrictions, create improper incentives on the part of state and local law enforcement, and unnecessarily burden our federal authorities,” the letter read.
They are right to be concerned. A Justice Department audit of Sunrise, Florida’s participation in equitable sharing revealed shoddy book keeping that led to more than $660,000 in discrepancies. Worse, the audit revealed that the town had successfully steered almost $375,000 to a local law firm in an effort to get around federal rules barring the use of forfeiture proceeds to pay officials’ salaries. Furthermore, Justice Department rules allowed Sunrise to pay more than $1 million in forfeiture funds as overtime to a small number of its officers, including a quarter-million dollars to one officer alone. Clearly, the federal program is in need of reform.
Rules violations like those in Sunrise are not isolated incidents. The Washington, DC Metropolitan Police Department (MPD) was taken to task by the city council for actually including anticipated future forfeiture funds in its budgets. This practice is prohibited by federal forfeiture rules, but that did not stop the MPD from doing it anyway. When the DC City Council enacted its sweeping forfeiture reform bill last year, it made sure to redirect equitable sharing funds to the city’s general treasury, rather than allow them to go directly to the MPD. This flies in the face of federal rules governing equitable sharing, and the city council expects this will effectively terminate DC’s participation in the program.
In their letter, Senator Grassley and the others called on the Attorney General to “consider discontinuing ‘adoptive seizures’ and ‘equitable sharing’” entirely. Federal law allows for, but does not require, the distribution of funds to law enforcement agencies; it is therefore within the legal authority of the Attorney General to discontinue the payouts. That does not, however, preclude Congress from taking legislative action. In fact, a number of influential Senators and Representatives have put forth bills addressing many of the areas of forfeiture law most in need of overhaul.
It remains to be seen how the Justice Department will handle this newest call for change. It is in the midst of an internal review of its entire forfeiture apparatus, and it is likely that Loretta Lynch, the U.S. Attorney for the Eastern District of New York and the President’s nominee for U.S. Attorney General, will face questions during her confirmation hearing about the civil asset forfeiture practices of the office she currently heads. Recent reports have revealed that during her tenure as U.S. Attorney, her office has filed over 120 civil asset forfeiture cases resulting in forfeitures of approximately $113 million. Given the Department’s current internal review and the numerous accounts of innocent property owners swept up by a system that is often stacked against them, it is appropriate to solicit Ms. Lynch’s views on the subject.
Last year was one of tremendous progress toward civil forfeiture reform. Minnesota and Washington, DC, enacted legal reforms that greatly increased protections for innocent property owners and lessened some of the financial incentives to seize first and ask questions later. Legal challenges to some of the most egregious forfeiture cases were won, many of them through the outstanding efforts of the Institute for Justice, a public interest law firm.
Despite determined resistance from some law enforcement agencies, the civil asset forfeiture reform movement is gathering momentum, and 2015 is the year to turn that momentum into results.
