Mimesis Law
10 July 2020

DOJ To Local Cops: The Forfeiture Party Is Over, For Now

Jan. 5, 2016 (Mimesis Law) — The Department of Justice ended 2015 with possible good news for the nation’s victims of the highway robbery scheme called civil asset forfeiture. In ending what amounted to a commission-based forfeiture system for local police, the DOJ has done a good thing. However, the reason for the program’s end is less than noble; they simply don’t have the money to keep taking your money.

The “equitable sharing program” is a handy way for local and federal police to work together while abusing the constitutional rights of citizens. Local or state police catch a person with property, usually a large amount of cash, that they suspect was gained from or intended to be used in a crime. Rather than take it under state forfeiture laws, they turn it over to the feds. The feds have a far larger machine to grind you up and spit you out. And a better payday than most state laws.

There is no need to prove an actual crime. In fact, most complaints filed in federal court contain a laundry list of crimes suspected; everything from money transportation crimes to drug crimes. They are not required to point to any specific criminal activity. They don’t have to find any specific past or future crime the money is linked to.

Congress’s most recent spending package cut out over a billion dollars that would have been used for payments to local police departments under the equitable sharing program. While the DOJ’s announcement has been heralded as good news for asset forfeiture opponents, it is clear the program’s suspension is a reluctant move by federal authorities.

Kendall Day, Chief of the DOJ’s Asset Forfeiture section, wrote a letter to the various forfeiture partners in crime, explaining the move. Day was clear that, if the budget picture improves, the Department would seek to reinstate the payments to local police. In other words, if the DOJ gets a chance to get the old gang back together, it’s going to.

The Department does not take this step lightly. We explored every conceivable option that would have enabled us to preserve some form of meaningful equitable sharing while continuing to operate the Program and meet our other fiscal obligations. Unfortunately, the combined effect of the two reductions totaling $1.2 billion made that impossible.

Despite starting out as a way to fight crime, civil asset forfeiture quickly became a way for the police to finance everything they did. The reaction to the news that the party is over sheds light on why the police were so attached to this easy money in the first place. And it has nothing to do with fighting crime.

A number of local police departments don’t seem interested in cooperating with the feds now that there is no money to be made. Six police advocacy groups joined in a letter to President Obama voicing their concerns over the policy change. The letter’s explanation of why “[t]his shortsighted decision by Congress will have a significant and immediate impact on the ability of law enforcement agencies throughout the nation to protect their communities and provide their citizens with the services they expect and deserve” is telling.

For over 30 years, the Asset Forfeiture program has allowed law enforcement to deprive criminals of both the proceeds and tools of crime. The resources provided by the equitable sharing program have allowed agencies to participate in joint task forces to thwart and deter serious criminal activity and terrorism, purchase equipment, provide training, upgrade technology, engage their communities, and better protect their officers.

Note the little bit of lip service paid to actually fighting crime. The claim that civil asset forfeiture is used to actually fight crime is a stretch. It can be hard to convict people of a crime without evidence. Civil asset forfeiture has no similar difficulties. It was never about fighting crime. Instead, it was about big profits to finance big policing.

Given the remarkable success of this program, the provisions approved by Congress and the Administration are both baffling and disappointing.

There is nothing baffling or disappointing about this decision. It makes sense. Hopefully Congress did it intentionally to rein in forfeiture. Civil asset forfeiture reform has been a hot topic for most of 2015 and this may have been an actual government decision made in the best interest of the country’s citizens.

The letter’s blatant threat to the federal government is what is baffling:

The suspension of equitable sharing payments may cause some agencies across the country to reconsider their ability to participate in joint task forces with the federal government. The effects of this decision are far reaching and not only a disservice to law enforcement, but also to the pubic they are sworn to protect.

Read that carefully. If the police don’t get a cut of the cash they are taking from the people, they don’t really have any interest in enforcing the laws. Apparently, without a piece of the action, the police aren’t going to protect and serve their communities.

This is a puzzling way to approach the situation. If it was all about crime fighting, why would equitable sharing matter? If the concern was taking profits away from criminals, state civil forfeiture laws have the exact same effect. So do criminal forfeiture laws, without tossing due process out the window.

It’s obvious the concern is actually the tremendous amount of graft resulting from the equitable sharing program. All the program suspension really changes is the amount of money the police receive from the program. Their apparent reliance on this money for law enforcement functions demonstrates the inherent conflict of interest in “policing for profit.”

If law enforcement has an incentive to take people’s property to finance further law enforcement activity, why would they do anything less than push the boundaries of forfeiture further and further? The element of profit is directly related to the abuse of the process.

It’s too early to write an obituary for the equitable sharing program. Based on the whining from the police groups and the reluctance to let it go in the first place, we will probably see the program again. But we would be well-served to fight its return.

2 Comments on this post.

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  • Scott Jacobs
    5 January 2016 at 4:52 pm - Reply

    “Hopefully Congress did it intentionally to rein in forfeiture.”

    Sit down. I have something to tell you, and it’s going to make you sad…

  • losingtrader
    6 January 2016 at 8:34 am - Reply

    Don’t you see this is another huge blow to the ailing Chinese margarita machine manufacturing sector? Sure, kick ’em when they’re down.