Federal Asset Forfeiture Takes a Blow, But It's Not Gone Yet

2015 was a rough year for US asset forfeiture. The year opened and closed with two administrative bookends which effectively curtail the practice of allowing law enforcement to seize property without bringing criminal charges, leaving behind a longstanding practice which has been significantly weakened — but not gone.

The curtailment began a year ago, when then-Attorney General Eric Holder announced new restrictions on the “Equitable Sharing Program” (an Orwellian phrase with a Tolkienesque twist), the Reagan-era partnership which permitted state and federal law enforcement agencies to bypass certain civil liberty protections to “share” seized property amongst themselves. Holder announced that he was shutting down the program subject to certain exceptions, but as Jacob Sullum and Americans for Forfeiture Reform’s Eapen Thampy correctly predicted, the exception permitting sharing among federal-state multi-jurisdictional task forces has almost swallowed the rule. These shadowy task forces often operate with little oversight or accountability, and for almost all of 2015 they had the green light to keep stealing.

That is why the DOJ’s little-publicized decision to shelve the remainder of the Equitable Sharing Program for budgetary reasons in late December may prove to be much more substantive than Holder’s plan, announced with such fanfare. As M. Kendall Day, Chief of the DOJ’s Asset Forfeiture and Money Laundering Section explains in her December 21st letter to state and local law enforcement agencies, Congressional budget cuts totaling $1.2 billion over two fiscal years have rendered the program insolvent, absent new funding to make up the gaps. So Equitable Sharing is going away, unless some brave member of Congress proposes increasing government spending to subsidize a legal larceny ring so inefficient it can’t survive off its heists for two years without a billion in government handouts.

But these reforms, while welcome, will not come close to actually ending the practice of civil asset forfeiture, a tyrannical policy which has existed in the US since colonial times. The federal DOJ will retain the power to seize property of its own accord without sharing with any other agency, and state asset forfeiture laws will likewise remain unaffected by the new budget cuts, which only apply to funding for federal agencies. That is especially significant because out of 50 states, so far only New Mexico has ended their state asset forfeiture program.

The year 2015 has been instructive for civil asset forfeiture reform. This author, for one, began last year with an underdeveloped appreciation for the labyrinthine morass of local, state, federal and tribal laws regulating the plunder and equitable division of spoils, compared to this year. Yet the more important lesson is that Equitable Sharing, like legal actions against state governments implementing medical marijuana programs, can be effectively limited by hitting big government where it hurts the most — the wallet.


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