The Department of Justice (DOJ) has announced that it will resume “equitable sharing” under the controversial Asset Forfeiture program. Equitable sharing had been suspended last December due to budget cuts. Disbursements to state, local and tribal law enforcement agencies will begin in April and be retroactive to when the program was suspended.
According to the FBI “[T]he the ability of the government to forfeit property connected with criminal activity can be an effective law enforcement tool by reducing the incentive for illegal conduct. Asset forfeiture takes the profit out of crime by helping to eliminate the ability of the offender to command resources necessary to continue illegal activities. The use of asset forfeiture in criminal investigations aims to undermine the economic infrastructure of the criminal enterprise. Criminal enterprises in many ways mirror legitimate businesses. They require employees, equipment, and cash flow to operate. Criminal enterprises also generate a profit from the sale of their ‘products’ or ‘services.’The obvious difference is that the profit generated from criminal enterprises is derived from criminal activity. Asset forfeiture can remove the tools, equipment, cash flow, profit, and, sometimes, the product itself, from the criminals and the criminal organization, rendering the criminal organization powerless to operate.”
DOJ describes equitable sharing under the Asset Forfeiture program: “The Department of Justice Asset Forfeiture Program (the Program) is a nationwide law enforcement initiative that removes the tools of crime from criminal organizations, deprives wrongdoers of the proceeds of their crimes, recovers property that may be used to compensate victims, and deters crime. The most important objective of the Program is law enforcement. Equitable sharing further enhances this law enforcement objective by fostering cooperation among federal, state, and local law enforcement agencies. Federal law authorizes the Attorney General to share federally forfeited property with participating state and local law enforcement agencies.”
The White House notes that “Between FY2009 and FY2014, the federal government provided nearly $18 billion dollars in funds and resources to support programs that provide equipment and tactical resources to state and local [law enforcement agencies] LEAs. LEAs can acquire equipment through various programs administered by the Departments of Justice (DOJ), Defense (DOD), Homeland Security (DHS), Treasury (Treasury), and the Office of National Drug Control Policy (ONDCP).1 DOJ, DHS and ONDCP directly fund equipment purchases through multiple grant programs. … DOJ and Treasury fund equipment purchases and other law enforcement activities through the equitable sharing component of the federal asset forfeiture programs. …The bulk of the equipment transferred from federal sources to LEAs is fairly routine— office furniture, computers and other technological equipment, personal protective equipment and basic firearms. But federal agencies also transfer, or fund the purchase of, military equipment, including high powered weapons and tactical vehicles.”
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Perhaps the most controversial portion of the program is described by the Institute for Justice (IJ) : “Under civil forfeiture laws, the government can seize …property on the mere suspicion that it is connected to criminal activity. No charges or convictions are required. And once property is seized, owners must navigate a confusing, complex and often expensive legal process to try to win it back. Worst of all, most civil forfeiture laws give law enforcement agencies a powerful incentive to take property: a cut, or even all, of forfeiture proceeds.”
In criticizing the return equitable sharing, the IJ stated “Today’s decision to revive equitable sharing shows that law enforcement values funding its own operations over protecting constitutional rights.“By offering substantial payouts to participating agencies, equitable sharing incentivizes law enforcement to evade state laws and pad their budgets. Local and state law enforcement agencies should be adequately funded, but their budgets should not in any way depend on property seizures. Today’s decision to revive equitable sharing shows the dire need for Congress to pass civil forfeiture reform. We also urge state lawmakers to follow the lead of New Mexico and ban transferring seized property worth less than $50,000 to federal law enforcement. Although today’s decision by the Justice Department is disheartening, we are determined to continue our fight to end civil forfeiture.”