Equitable Sharing: How Local Governments Can Beat Civil Forfeiture Restrictions with Federal Help

Bob Donley notes that budget dollars have been tight for all governments in the past few years, from the federal government down to cities and towns. That’s why all of them are excited about a revenue stream that has “increased tenfold over the past ten years.” The revenue stream in question is civil forfeitures.

Donley points out that civil forfeitures are not the same thing as criminal forfeitures. In a criminal forfeiture, a suspect must be charged and convicted of a crime before property can be seized by the government. In a civil forfeiture, anything “from cash, to cars, to houses” can be seized by a governmental agency and liquidated. The money is then theirs to spend as they choose. All of this can happen without any courtroom involvement of the property owner.

Modern civil forfeiture really took off during the 1980s as a way to carry out the war on drugs. When the recession of 2008 cut into governmental budgets at all levels, officials were scrambling for more money that didn’t involve taxpayer approval. That budget shortage led to a big boost in civil forfeitures. This is big business for governments.

Some states have tried to regulate civil forfeitures and cut down on wholesale property seizures. These states have imposed limits on what can be seized, a reaction caused in part by the overzealous approach of some prosecuting attorneys. But a federal loophole has been found. It is called equitable sharing.

The way equitable sharing works is as follows: A local agency turns over confiscated goods to the federal government, along with the case. The federal government then handles the case in the federal court as a civil matter. The matter thus is out of state jurisdiction, and statutory limits on state action don’t apply. For its trouble, the federal government keeps 20% of the take and returns 80% directly to the local agency that referred the case.

Donley quotes a state lawmaker who observed that “you couldn’t make this stuff up.” It seems unlikely that state and local agencies will walk away from equitable sharing anytime soon.

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