Christmas came early for defenders of the Constitution.
On Dec. 21, the U.S. Department of Justice announced it was halting, albeit temporarily, its “equitable sharing” program, which allows the government to take and keep cash, cars, homes and businesses from people who have never been convicted of, or even charged with, a crime. Even worse, police are rewarded for taking property. Equitable sharing grants local and state law enforcement agencies up to 80 percent of the proceeds garnered from a forfeited property, with the feds taking the rest.
Given such perverse incentives, it’s no surprise that equitable sharing became a formidable cash cow. According to a recent report by the Institute for Justice, Policing for Profit, the Justice Department distributed more than $4.73 billion in proceeds under equitable sharing from 2000 to 2013. During those years, equitable sharing exploded: In 2013 alone, the Justice Department doled out more than $640 million in equitable sharing payments — triple the amount granted in 2000. In fact, more than 500 police departments and task forces have relied on equitable sharing for the equivalent of 20 percent or more of their yearly budgets.
Incredibly, local and state agencies can participate in equitable sharing even if doing so would circumvent tougher state restrictions on civil forfeiture. For instance, 16 states and the District of Columbia either do not allow agencies to profit from forfeiture under their state laws or allocate less than the 80 percent the feds offer through equitable sharing. In other words, the DOJ is paying state law enforcement agencies to ignore laws enacted by state legislators.
Moreover, forfeiture cases processed under equitable sharing take place on the federal level, where property owners face a stunning lack of due process. To forfeit property, federal prosecutors need only show that there is a connection between the property and alleged criminal activity by a “preponderance of the evidence” — a far lower standard that the “beyond-a-reasonable-doubt” standard required for criminal convictions. Meanwhile, property owners are not presumed innocent and instead must prove their innocence in court to retrieve their seized property.
Since the law is so stacked in favor of the government, the Justice Department routinely favors civil forfeiture. Analysis by the institute’s Policing for Profit report found that out of all forfeiture cases pursued by the DOJ from 1997 to 2013, 87 percent were civil forfeitures, meaning a criminal conviction was simply not needed.
Thankfully, recent budget cuts, including in the December omnibus spending bill, forced the Justice Department to suspend $1.2 billion in equitable sharing payments. But make no mistake: DOJ is eager to revive the program. “By deferring equitable sharing payments now, we preserve our ability to resume equitable sharing payments at a later date should the budget picture improve,” M. Kendall Day, the chief of the Asset Forfeiture and Money Laundering Section wrote. “The Department remains committed to the Program.” Suspension is no substitute for lasting reform.
Hopefully, the Justice Department announcement will galvanize lawmakers to not only end equitable sharing but overhaul state and federal civil forfeiture laws as well. A burst of legislative activity occurred in 2015. Montana, Nevada and New Mexico all enacted laws requiring criminal convictions as a prerequisite to forfeiture. In the District of Columbia and New Mexico, reforms went into effect that redirect any and all forfeiture proceeds away from lining police coffers and toward the general fund.
On the federal level, Republican Sen. Rand Paul of Kentucky and Republican Rep. Tim Walberg of Michigan introduced the Fifth Amendment Integrity Restoration (FAIR) Act. If enacted, the FAIR Act would largely eliminate equitable sharing as well as shift the burden of proof onto the government for innocent owner cases and require more evidence before the feds could take property. In the House, 90 representatives have signed on as co-sponsors.
Unlike many political issues, opposition to civil forfeiture has fostered a unique coalition. Very rarely do groups like the American Civil Liberties Union and the Heritage Foundation find themselves on the same side. For many progressives, civil forfeiture is a threat to civil liberties, with minorities and working-class Americans disproportionately victimized. On the right, conservatives are increasingly outraged that bureaucracies and federal agents are going after innocent small-business owners.
The Due Process Clause of the Fifth Amendment to the Constitution is deeply cherished for safeguarding American liberty and property from government overreach. But the principles it espouses are routinely violated by law enforcement agencies that pursue civil forfeiture.
For more than 15 years, Congress has not taken any significant action on civil forfeiture. In a time of growing partisan rancor, ending policing for profit offers a chance for legislators to reach across the aisle and defend Americans’ constitutional rights.
• Nick Sibilla is a communications associate at the Institute for Justice.