How States Stack Up
States vary in their agencies’ use of federal equitable sharing. To determine how states stack up, we calculated how much revenue each state received through DOJ’s program in recent years and standardized those amounts to account for different rates of drug arrests in the states. 1 As drug crimes are the alleged activity that most often leads to equitable sharing forfeitures, standardizing states’ revenues by drug arrest rates allows us to see which states disproportionately participate in the equitable sharing program. Table 2 ranks the states according to their standardized equitable sharing activity, with higher numbers indicating states with the heaviest reliance on equitable sharing. In other words, South Dakota ranks first because it participates in equitable sharing the least, while Rhode Island ranks 51st because it participates in equitable sharing the most.
Table 2: State Equitable Sharing Rankings
|District of Columbia||7|
While some states, such as Texas (D+, ranked 47th) and Massachusetts (F, ranked 48th), have poor state laws and use equitable sharing extensively, others, such as 34th ranking Missouri illustrate how equitable sharing serves as a loophole to circumvent stronger state forfeiture laws.
Missouri earns a B+ for its forfeiture laws, largely because the state Constitution directs forfeiture proceeds to schools, not law enforcement. But a 2019 investigation found less than 2% of forfeited funds make it to Missouri schools, thanks at least in part to the equitable sharing loophole. 2 Indeed, a state audit of Missouri’s 2019 seizures found state and local law enforcement agencies transferred nearly half the value of their seizures to the federal government for forfeiture. 3 Funds the agencies receive back through equitable sharing do not go to the schools; in fact, they must stay with law enforcement and be used for law enforcement purposes. 4 One Missouri prosecutor described equitable sharing as a “valuable resource,” telling reporters, “It takes the proceeds of criminal activities out of the hands of the criminals, (and) it benefits local law enforcement to enhance our training and enhance our equipment. It’s a win-win.” 5 It might be a win for law enforcement, but this activity directly circumvents the Missouri Constitution. 6
The experience of Sidialy Diaafar shows how equitable sharing’s promise of otherwise unavailable forfeiture proceeds opens the door to abuse. On May 2, 2019, Diaafar was stopped on I-95 in Cumberland County, North Carolina, by a sheriff’s officer. Though the officer claimed Diaafar had been speeding and weaving, he issued no ticket. Instead, he called in a K-9 unit to search the car—without consent, a warrant or probable cause. The search turned up no drugs or other contraband, only $22,970 in cash Diaafar had already told the officer he was carrying. Diaafar said he had withdrawn the funds from his bank for potential investment in a convenience store, and he offered documents verifying his story. The officer declined the offer and instead seized the cash, saying it would be turned over to DHS. He gave Diaafar a receipt that did not list the value of cash taken but did list a phone number for Homeland Security Investigations. No arrest was made or charges filed. 7
Such a seizure would be unlikely to stick under North Carolina law. North Carolina effectively bans civil forfeiture, so to forfeit Diaafar’s cash, the sheriff’s office would have had to refer the case to the state’s Attorney General’s Office, which would have then needed to convict Diaafar. In addition, even if the forfeiture had been successful, any proceeds would have gone not to the Cumberland County Sheriff’s Office but to public schools. These features of North Carolina law earn the state a B+, one of the top grades in Policing for Profit. But with equitable sharing, North Carolina law enforcement can undermine these protections and get a cut of the proceeds. Federal data suggest they do so routinely, as the state ranks as one of the worst states—45th—for participation in the program.
Other states with grades better than the federal government’s, such as California (C, ranked 49th), New York (C, ranked 50th), Florida (C, ranked 44th) and Maryland (B+, ranked 32nd), are among the worst offenders when it comes to equitable sharing use.