Congressman Cites IJ Forfeiture Case in LA Times Op-Ed

Since two weeks ago, the Institute for Justice’s successful forfeiture case in Muskogee, Oklahoma has inspired news coverage from across the country, including articles in the Washington Post, and editorials in the Journal Record and Lincoln Journal Star. The case also inspired an op-ed by Rep. Darrell Issa last week in the Los Angeles Times arguing for reform of one federal forfeiture program.

According to Rep. Issa:

A program run by the Department of Justice known as “equitable sharing” in effect allows state and local police to circumvent state restrictions on civil forfeiture. Through “equitable sharing,” local police departments can seize assets under federal, rather than state, law and keep 80% of the proceeds. (The Justice Department gets the rest.)

It should come as no surprise that in states that have implemented caps and limits, law enforcement simply relies on the federal program instead.

In 2015, the Drug Policy Alliance found that whereas revenue collected under California’s forfeiture laws had remained constant over the previous 10 years, revenue under the federal program had more than tripled.

IJ’s report, Policing for Profit, offers two explanations for California’s abuse of equitable sharing: It is easier and more lucrative to forfeit property under federal law than state law. In California, in order to forfeit cash amounts under $25,000 and all other property, the government must first secure a criminal conviction and then prove beyond a reasonable doubt that the property is linked to the crime,. But under federal law, no conviction is required and the standard of proof is only the far lower standard of proof of preponderance of the evidence. Moreover, California law lets law enforcement keep 66 percent of proceeds from forfeiture, while federal law allows agencies to keep up to 80 percent. It should come as no surprise then that California agencies forfeit more than double the amount of property under equitable sharing than under state law—an annual average of $50 million versus $23 million, respectively.

By comparison, Arizona’s state law is not as stringent as California’s state law.  It does not require a conviction and only requires prosecutors to show a linkage to a suspected crime by a preponderance of the evidence to forfeit property. Unlike California, there is no great difference between the legal requirements in state and federal forfeiture laws.  According to Policing for Profit, from 2000 to 2013 the average amount seized annually under Arizona’s state law was more than $27 million. That’s more than the annual average under  California which has a population five times that of Arizona’s, thus suggesting that law enforcement in neighboring states shop for forfeiture laws with the lowest standards of proof and highest payouts.

In order to prevent law enforcement from exploiting equitable sharing, Rep. Issa suggested “closing the equitable-sharing loophole, and requiring police to satisfy a higher burden of proof to a judge before seizing property under federal law.” Some states have already passed laws preventing state and local law enforcement from transferring property seized locally to federal agencies. Last year, New Mexico passed and enacted a law requiring a criminal conviction for property to be forfeited, and included a provision which banned law enforcement in the state from transferring seized property to a federal agency unless the property is worth at least $50,000. Last month, Nebraska passed similar reforms, but in that state property must be worth at least $25,000 to be transferred to a federal agency. Other states should look to New Mexico and Nebraska when reforming their own forfeiture laws.

In 2015, California also attempted to restrain the equitable-sharing loophole through legislation. Senate Bill 443 would have prevented law enforcement from transferring property seized under state law to a federal agency, regardless of the amount seized. The bill passed the Senate overwhelmingly but failed in the Assembly after law enforcement agencies complained about the loss of funding that could result from the reforms. It would be better for law enforcement to focus on catching criminals rather than filling their coffers with money taken from innocent people like Eh Wah. Congress ought to shut down equitable sharing and reform terrible federal forfeiture laws. But, short of that, California and other states should ensure that state and local law enforcement follow state law by curtailing participation in the program.

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