Equitable Sharing Creates a Giant Loophole

Even in states with forfeiture laws that provide relatively strong protections and due process rights, innocent people remain at risk of having their property forfeited. That is because the federal government provides a massive loophole: federal equitable sharing. Equitable sharing allows state and local law enforcement agencies to partner with the federal government to seize and forfeit property under federal law—and receive up to 80% of the proceeds—regardless of state law.

Equitable sharing gives state and local agencies another avenue for forfeiting property and gaining a share of proceeds—one backed by the resources of the federal government. More than that, though, the program enables law enforcement agencies to circumvent their own state’s forfeiture laws in favor of forfeiting property under federal forfeiture laws, which earn a D- for being some of the worst in the country. Thus, forfeiting property through equitable sharing may be especially appealing when a state offers property owners more protections, or makes forfeiture less lucrative, than federal law does.

Proponents argue equitable sharing—and the revenue it generates—is essential for federal, state and local law enforcement to effectively collaborate, especially when it comes to combatting the illegal drug trade. In theory, these forfeitures take the profit out of crime and provide state and local agencies with the resources they need to continually step up their crime-fighting abilities. But recent research finds no evidence that this is actually true. Results from the 2019 study by economist Brian Kelly indicate equitable sharing payments to state and local agencies did not translate into more crimes solved or lower levels of drug use—though they did correspond to fiscal stress, suggesting equitable sharing use increases when the economy turns sour and law enforcement budgets are likely to suffer cuts.