Mimesis Law
4 March 2021

Forfeiture Reform? Good Times

Mar. 31, 2016 (Mimesis Law) — For a brief and shining moment starting last October, it seemed as if criminal law reform was possible. Everybody was talking about it, from the pompously named “Law Enforcement Leaders to Reduce Crime and Incarceration,” to President Obama. Even Chuck Grassley, chair of the Senate Judiciary Committee and the last man on earth to give a damn, was for it.

And then came the coup de grace, the Department of Justice announced that it would end one of the most disastrously outrageous programs ever devised to incentivize police to steal the money, the property, of Americans, upon nothing more than a cheap and baseless claim, and force them to try to get it back. “Equitable sharing” of federally forfeited property would be curtailed, so that local cops would no longer have the incentive to seize from the innocent. Hoo boy, could it get any better?

When this rush of reason, this confluence of official voices calling for reform, hit the papers, I called bullshit. If anybody really wanted to end incarceration nation, they could do so in a flash. There was no need to put on a dog and pony show for the media, and that this sudden interest appeared, coincidentally, at the same time as videos of cops killing innocent unarmed black guys, as stories of mayhem and flagrant injustice permeated the public dialogue, was way too curious. Play the fools by claiming to care deeply about their concerns, and the fools will be pacified and go back to watching Real Housewives of somewhere.

And as Ilya Somin writes at Volokh Conspiracy, the coup de grace has rebounded by proof it was garbage from the outset.

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.

That the program was at the root of so many evils isn’t news to anyone familiar with how cops would rather find a car with cash than 100 kilos of dope. They don’t need the dope, but cash is king. And the more cars you stop, the more money you can find. And the more money you find, the more money you get to keep. And the feds do all the work for you, using the fictional in rem forfeiture process, where the property, not the person, is the criminal.

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.

Perhaps Ilya’s view of the political mainstreaming of the death of forfeiture is a little premature. Saying it’s wrong is easy. Ending it is hard. Putting one’s political juice behind stopping a huge revenue stream to government off the backs of the little guy isn’t going to make a lot of friends, and certainly won’t get a politician the endorsement of his local police union. So it’s wrong? Yeah, yeah. So is raising taxes, and using forfeited funds to buy weapons of mass destruction saves general fund expenditures. Who doesn’t love not raising taxes?

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.

While this data point is surely one that will cause blood pressure to rise, forfeiture was just as wrong before. And when the DoJ saw fit to end its equitable sharing program, it almost seemed, for that brief and shining moment, that the nation had finally quit taking money from random citizens, the push for cops to steal for cash, would close the door on one of the saddest pages in legal history.

But it’s back. According to the government, it was never stopped because it was wrong and abusive. They just ran out of enough cash to fund it.

The Justice Department had suspended payments under this program 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.

And so the final nail in the criminal justice reform coffin is driven home. Hope you enjoyed it while it lasted, because it’s dead and buried.

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