How Federal "Equitable Sharing" Encourages Local Police and Prosecutors to Evade State Civil Forfeiture Law for Financial Gain
By Dick M. Carpenter II, Ph.D., Larry Salzman and Lisa Knepper
Civil forfeiture is the government power to take property suspected of involvement in a crime. Unlike criminal forfeiture—used to take the ill-gotten gains of criminal activity after a criminal conviction—with civil forfeiture, police can take property without so much as charging the owner with any wrongdoing.
Owners caught up in civil forfeiture proceedings typically have few legal rights, while police and prosecutors enjoy all the advantages. Worse, most state and federal laws award the law enforcement agencies that take the property at least a cut, if not all, of the proceeds. This direct financial incentive and the limited safeguards for owners combine to encourage the taking of property.
Equitable sharing makes this bad situation worse. Through equitable sharing, police and prosecutors can take property from citizens under federal civil forfeiture law instead of their own state laws. From the perspective of law enforcement, this is a good deal: Federal law makes civil forfeiture both relatively easy and rewarding, with as much as 80 percent of proceeds returned to the seizing agency.
Thus, with equitable sharing, state and local law enforcement can take and profit from property they might not be able to under state law. If a state provides owners greater protections or bars law enforcement from directly benefiting from forfeitures, agencies can simply turn to federal law.
Recent research published in the Journal of Criminal Justice shows this is exactly what agencies do when faced with stricter and less generous state forfeiture laws—they turn to the feds and keep on pocketing forfeiture money.
And the problem is growing worse. Between 2000 and 2008, equitable sharing payments from the U.S. Department of Justice to state and local law enforcement doubled from about $200 million to $400 million. And data from two states, Massachusetts and California, indicate that these figures underestimate the true extent of equitable sharing nationwide.
Forfeiture reform is desperately needed at all levels. But for state reforms to have lasting effects, law enforcement must not be allowed to use equitable sharing to disregard state law. State and local law enforcement should have to follow state law.