Should the Federal Government Be Involved in Civil Asset Forfeiture?

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February 26, 2016

By: Tyler Jones

Civil asset forfeiture – that is, the ability of the government to seize the implements of and proceeds from criminal activities – is a controversial policy to say the least.  The Federal Bureau of Investigation calls it “the most effective means of recovering property and funds…to compensate innocent victim(s),” whereas civil liberties groups on both ends of the political spectrum oppose it because they believe it to be an intolerable and unevenly enforced violation of property rights, especially in marginalized communities.  One of the most controversial aspects of civil asset forfeiture was a program known as “equitable sharing,” which allowed state and local agencies or inter-jurisdictional task forces to process civil asset forfeitures through the federal government, dividing the proceeds in accordance with the amount of work performed by each agency. When this scheme was in place, the federal government received at least a 20% cut.  The program, which was meant to facilitate interagency cooperation, was soundly criticized as open to abuse.  While recent efforts, such as Eric Holder’s attempt attempted to reform the program, they generally fell short of their targets.

In this atmosphere of allegations of abuse and attempted reforms, it is unsurprising that many people construed a recent announcement by the Justice Department, which suspended equitable sharing, as the inevitable demise of that program.  This framing, however, is not accurate.  The cessation of equitable sharing payments was not a policy decision based on the efficacy of the program, nor was it a normative judgement about civil asset forfeiture in general.  Instead, it simply reflected a cash-flow issue.  In 2015, with budget debates raging, Congress emptied the account that the Justice Department used to hold proceeds from equitable sharing, appropriating $1.2 billion in the process; the irony of Congress seizing seized funds should not be overlooked.  This was the only account from which, by statute, the Justice Department could make equitable sharing payments (see 28 U.S.C. 524(c)(8)(E)).  Thus, draining the account prevented the Justice Department from making good on any of its outstanding obligations.  However, the infrastructure of program and its statutory justification are still both in place, and the program could restart at any point.  Thus, the real question is not if the equitable sharing program will restart, but when.

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