The Justice Department has announced that it is resuming a controversial practice that allows local police departments to funnel a large portion of assets seized from citizens into their own coffers under federal law.
The "Equitable Sharing Program" gives police the option of prosecuting some asset forfeiture cases under federal instead of state law, particularly in instances where local law enforcement officers have a relationship with federal authorities as part of a joint task force. Federal forfeiture policies are more permissive than many state policies, allowing police to keep up to 80 percent of assets they seize.
"In the months since we made the difficult decision to defer equitable sharing payments because of the $1.2 billion rescinded from the Asset Forfeiture Fund, the financial solvency of the fund has improved to the point where it is no longer necessary to continue deferring equitable sharing payments," spokesman Peter J. Carr said in an email Monday.
While he didn't specify exactly where the new funding came from, Carr noted that the program is partly funded by the cash and other property seized under the program.
"The Asset Forfeiture Fund acts in many ways like a revolving fund," he explained in a follow-up email. "Forfeited proceeds are being deposited throughout the year to replenish the funds that are simultaneously flowing out of the Asset Forfeiture Fund to pay for approved agency expenses." He noted that when the Justice Department announced the suspension in December, it remained "very eager to resume payments as soon as it is fiscally feasible to do so."
Asset forfeiture is a contentious practice that lets police seize and keep cash and property from people who are never convicted of wrongdoing — and in many cases, never charged. Studies have found that use of the practice has exploded in recent years, prompting concern that, in some cases, police are motivated more by profit and less by justice.
A wide-ranging Washington Post investigation in 2014 found that police had seized $2.5 billion in cash alone without warrants or indictments since 2001. In response, then-Attorney General Eric Holder announced new restrictions on some federal asset forfeiture practices. These restrictions were meant to limit the ability of state and local law enforcement officials to choose more lenient federal forfeiture guidelines over state law.
But critics say the reforms don't go far enough, and still leave discretion for local authorities to choose more permissive federal laws by acting as part of a joint task force with federal authorities.
Asset forfeiture is fast growing -- in 2014, for instance, federal authorities seized more than $5 billion in assets. That's more than the value of assets lost in every single burglary that year.
Reformers had hoped that the suspension of the program in December was a signal that the Justice Department was looking for ways to rein in the practice. But that no longer appears to be the case.
"This really was about funding, not a genuine concern about the abuses rampant in the equitable sharing system," said Scott Bullock, president of the Institute for Justice, in an interview. The institute is a civil liberties law firm that researches asset forfeiture and advocates on behalf of forfeiture defendants. It has reported extensively on what it calls the "profit motive" created by the Equitable Sharing Program: Because police get to keep a share of the items they seize, they have an incentive to take more stuff.
Bullock said the suspension and return of equitable sharing demonstrate the need for Congress to act on the issue. "Changes to forfeiture policy can be swept away by the stroke of a pen," he said.
But law enforcement groups dispute that the equitable sharing program is all about filling coffers. "It's not about the money, it's about public safety and doing the job," said Terrence Cunningham, president of the International Association of Chiefs of Police, in an interview.
Cunningham said that funds from the equitable sharing program are often used to cover budgetary gaps when agents from a local police office are detailed to part of a federal task force. "Say I’ve got one officer assigned to a DEA task force," he explained. "A lot of times I have to backfill that vacancy by paying other detectives overtime. To be quite honest with you I could not afford to do that" without reimbursement from the federal agency, he said.
Cunningham said that federal-local task force operations are often necessary to go after criminals who would otherwise be difficult to pursue via either local or federal efforts alone.
Law enforcement groups appear to have had some successes in rallying members of Congress to their side. In January, New Hampshire Sens. Kelly Ayotte (R) and Jeanne Shaheen (D) called on the Justice Department to restore the payments.
"We are seeing a lot more pushback from law enforcement," the Institute for Justice's Bullock said. "Even to the point where they are ... making budgetary appeals saying, 'we need this for our bottom line.' And that's something that's been unusual to see, and it goes to our point about what this is really about -- raising the revenue," he added.
Other reform groups are also disappointed to see the program reinstated. "There was hardly time to celebrate the suspension of the Equitable Sharing Program before the government felt the need to put its hand back in the cookie jar at the expense of our civil rights," said Jordan Richardson, senior policy analyst at the criminal justice reform group Generation Opportunity, in a statement. "It's unjust for the government to seize assets from people who are not charged with a crime. It's disappointing to see a White House that claims to be a champion of criminal justice reform reinstate a program that so clearly works against it."
This story has been updated.