The Feds Have Resumed a Controversial Program That Lets Law Enforcement Take Things and Keep it

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The Justice Department just announced that it’s resuming a practice which is extremely controversial and allows local police departments to use a large portion of assets seized from citizens as their own spending money and loot under federal law.

The “Equitable Sharing Program” gives law enforcement the option of prosecuting some asset forfeiture cases under federal law instead of state law, especially in situations where local law enforcement officers have a relationship with federal authorities as part of a joint task force. Federal forfeiture policies are far more “permissive” than many state policies, allowing cops to keep up to 80% of assets that they seize.

The Justice Department had suspended these payments in December due to budget cuts included in last year’s spending bill.

“In the months since we made the difficult decision to defer equitable sharing payments because of the $1.2 billion rescinded from the Asset Forfeiture Fund, the financial solvency of the fund has improved to the point where it is no longer necessary to continue deferring equitable sharing payments,” spokesman Peter J. Carr said in an email Monday.

While he didn’t specify exactly where the new funding came from, he pointed out that the program is partially funded by the cash and other property seized in the program.

“The Asset Forfeiture Fund acts, in many ways, like a revolving fund,” he said in a follow-up email. “Forfeited proceeds are being deposited throughout the year to replenish the funds that are simultaneously flowing out of the Asset Forfeiture Fund to pay for approved agency expenses.” He noted that when the Justice Department announced the suspension in December, it remained “very eager to resume payments as soon as it is fiscally feasible to do so.”

Asset forfeiture is a controversial practice that lets police seize and keep cash and property from people who’re never convicted of wrongdoing — and in many cases, never even charged. Studies have found that use of the practice has grown exponentially in recent years, prompting concern that, at least in some cases, cops are motivated more by profit than by justice.

A far-reaching Washington Post investigation in 2014 found that police had seized $2.5 billion in cash without warrants or indictments since 2001. In response, Eric Holder, Attorney General at the time, announced new restrictions on some federal asset forfeiture practices. These restrictions were meant to limit the ability of state and local law enforcement officials to choose more lenient federal forfeiture guidelines over state law. Confused?

But critics say the changes don’t go far enough and still let local cops choose more permissive federal laws by acting as part of a joint task force with federal authorities.

In 2014 federal authorities seized more than $5 billion in assets. That’s more than the value of assets lost in every single burglary that same year.

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Reformers to the program had hoped that the suspension of it was a sign that the Justice Department was looking for ways to slow the practice down – no such luck.

“This really was about funding, not a genuine concern about the abuses rampant in the equitable sharing system,” said Scott Bullock, president of the Institute for Justice, in an interview. The institute is a civil liberties law firm that researches asset forfeiture and advocates on behalf of forfeiture defendants. It has reported extensively on what it calls the “profit motive” created by the Equitable Sharing Program: Because police get to keep a share of the items they seize, they have an incentive to take more stuff.

He said the removal and restart of equitable sharing demonstrates the need for Congress to act on the issue. “Changes to forfeiture policy can be swept away by the stroke of a pen,” he said.

But law enforcement groups dispute that the program is all about “filling their coffers”.

“It’s not about the money, it’s about public safety and doing the job,” said Terrence Cunningham, president of the International Association of Chiefs of Police, in an interview.

He said that funds from the equitable sharing program are often used to cover gaps in budgets when agents from local police departments are working as part of a federal task force. “Say I’ve got one officer assigned to a DEA task force,” he explained. “A lot of times I have to backfill that vacancy by paying other detectives overtime. To be quite honest with you, I could not afford to do that without reimbursement from the federal agency,” he said.

Cunningham said that federal and local task force operations are all too often necessary in order to effectively go after criminals who would normally be difficult to pursue via either local or federal attempts alone.

Law enforcement groups appear to have had some successes in getting members of Congress to see their side. In January, New Hampshire Senators Kelly Ayotte, a Republican, and Jeanne Shaheen, a Democrat, asked the Justice Department to restore those payments.

“We are seeing a lot more pushback from law enforcement,” the Institute for Justice’s Bullock said. “Even to the point where they are … making budgetary appeals saying, ‘we need this for our bottom line.’ And that’s something that’s been unusual to see, and it goes to our point about what this is really about — raising the revenue,” he added.

Other reform groups are also disappointed to see the program reinstated. “There was hardly time to celebrate the suspension of the Equitable Sharing Program before the government felt the need to put its hand back in the cookie jar at the expense of our civil rights,” said Jordan Richardson, senior policy analyst at the criminal justice reform group Generation Opportunity, in a statement. “It’s unjust for the government to seize assets from people who are not charged with a crime. It’s disappointing to see a White House that claims to be a champion of criminal justice reform reinstate a program that so clearly works against it.”

 

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