An Attractive Prospect for State and Local Law Enforcement

The attraction of equitable sharing for state and local agencies is both financial and procedural. On the financial side, equitable sharing provides state and local agencies up to 80% of the proceeds from a forfeiture, reserving at least 20% for the federal government. Per federal guidelines, shared proceeds are for the agencies’ benefit, not the general public’s, and they must add to the agencies’ available resources. ¹  This is true even if state law limits or prohibits agencies’ ability to profit from state forfeiture revenues. Simply put, the financial incentive for participating agencies is central to the equitable sharing program.

Procedurally, equitable sharing brings federal law and resources to bear, making it more likely seized properties will be forfeited. Not only are federal forfeiture laws some of the worst in the country for property owners, but they also permit administrative forfeiture without court involvement. And with equitable sharing, should owners initiate litigation, federal prosecutors do any heavy lifting.

These features make equitable sharing an attractive proposition for law enforcement agencies, particularly in states that make forfeiture less lucrative or more difficult. Research supports the concern that agencies use equitable sharing both to bypass less permissive state laws and to generate revenue. Multiple studies have shown that agencies in states with more restrictive forfeiture laws engage in more equitable sharing. ²  Another study found that equitable sharing payments correspond to fiscal stress, suggesting the program’s financial incentive is a significant motivator for law enforcement. ³

The case of Institute for Justice client Stephen Lara illustrates how equitable sharing can be used to circumvent state law. While on a road trip to visit his daughters in February 2021, the Marine veteran was stopped by the Nevada Highway Patrol, allegedly for coming up behind a tanker truck “a little bit too close.” ⁴  During the stop, Stephen consented to a search of his vehicle and volunteered that his life savings were in a backpack in the trunk. No drugs, guns, or other contraband were found, and Stephen had bank withdrawal receipts proving the money was his. Nevertheless, officers seized his money. ⁵  

Instead of trying to forfeit Stephen’s money under state law, the officers turned it over to the federal government for equitable sharing, even though federal law enforcement was not involved in the stop. ⁶  It is likely they did this because federal forfeiture offers myriad advantages over Nevada law. For example, state law limits agencies’ financial incentive by requiring them to send 70% of forfeiture funds above $100,000 remaining in their accounts at fiscal year end to the state’s school fund. By contrast, equitable sharing has no such limits. ⁷  State law requires clear and convincing evidence, a steeper requirement than the federal preponderance standard. ⁸  And Nevada requires that property be returned immediately if a person is acquitted of the criminal allegations that gave rise to the seizure, whereas federal law does not. ⁹

With so many advantages, it is easy to see why law enforcement agencies often prefer equitable sharing, resulting in its widespread use across the country.