While efforts to reform criminal justice and policing policies have swept the nation – and particularly in red states, with many big initiatives helmed by Republican governors – the Obama administration’s Department of Justice has continued to prop up “tough on crime” policies ripped from the 80s and 90s that do more harm than good.
Attorney General Loretta Lynch quietly reinstituted the Department of Justice’s Equitable Sharing Program recently, which incentivizes local authorities to more harshly prosecute cases in order to take advantage of asset forfeiture laws, allowing these local departments to confiscate personal property they believe is related to criminal activity – including cars, boats and cash – without trial or any due process beyond even suspicion, and share those seizures with federal authorities.
The Equitable Sharing Program allows local authorities to get around state rules and pursue federal forfeiture laws. In many states, this means the authorities have much wider latitude because federal laws can be so much broader. This circumvents many states that have begun instituting sweeping restrictions to their own asset forfeiture laws – a case of the federal government prioritizing their own policy rather than letting states decide.
Asset forfeiture laws disproportionately affect vulnerable poor and minority populations. The kinds of crimes involved, and the lack of resources that victims of asset forfeiture typically have to fight them, are important here. In many cases of abuse, police are seizing things from people who merely wish to pursue their dreams. In 2015, authorities seized the life savings of a 22-year-old traveling to California to start a career in the entertainment industry. In 2012, they seized over $17,000 from a barbecue restaurant owner – who had to shutter his restaurant as a result. In 2007, police took thousands from a family with two small children traveling through Texas after they were pulled over and the police found the cash in their car.
None of these people were ever charged with a crime.
What makes this all the worse is the great reforms being undertaken on the state level. From Pennsylvania to Tennessee to Wisconsin to Wyoming and elsewhere, state activists and legislatures have taken great effort to curb these abusive practices in the last couple of years. Just last week, Florida Gov. Rick Scott signed one of the best reforms along these lines – a law that will require actually charging suspects with a crime in any asset-forfeiture case.
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Lynch will undo all of that with the continuation of the Equitable Sharing Program. Local authorities have increasingly abused the program, with the federal payments ballooning from $200 million in 2000 to more than $600 million in 2013, according to the Institute for Justice. The program became so abused that the original reason it was suspended last year was a lack of funds – the program had grown too large, and federal budget cuts meant that the Department of Justice could no longer afford to continue operations.
Lynch has apparently found the money, however, and that’ll mean that local authorities will continue to be able to seize from ordinary Americans who aren’t charged with crimes. And with asset forfeiture reforms that have spread across the country, the authorities will increase their use of the sharing program to circumvent their own jurisdictions. In Maryland’s proposed reforms, for example, there’s explicit language allowing the practice.
There are more and better reforms that can be done for forfeiture. The proposals that would force authorities to actually charge a crime before seizing property is a good one. Repealing the standard policy that individual departments can be funded with seizures would be another good one. Having police seizures go into a general revenue fund rather than earmarked to fund the police themselves would curb the incentive for the indiscriminate seizures that have caused these high-profile problems.
All this means is that while states have been making real progress on reforming asset forfeiture laws that have led to decades of abuse, the Department of Justice is securing the ability for state and local authorities to continue business-as-usual. It’s a shame that, after so much success for reform on the asset forfeiture front, the federal government is going to roll back the clock by reinstating one of the primary drivers of the problem.
