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The Federal Loophole: Part One

On July 29, 2011, in Drug War, federal, states, by Charles Kucher

Prosecutors in drug cases have enjoyed the ability to prosecute criminal cases in federal court for many years. Federal sentencing regimes, particularly for drug offenses, are often more punitive than their state counterparts and the overlap in state and federal criminal codes means that almost any drug offense that can be charged by a state prosecutor can be prosecuted in federal court. The threat of more severe penalties is often used by prosecutors as a bargaining chip to pry information or pleas from suspects.

The legal overlap that gives prosecutors this power also gives state and local law enforcement latitude in civil forfeiture proceedings. State and local law enforcement agencies may choose to hand a forfeiture case over to one of the federal agencies for prosecution in federal court in a process is known as federal adoption. Unfortunately for property owners, the differences between state and federal forfeiture laws can be dramatic and leave them exposed in far more ways than they would be in a criminal trial.

The deficiencies of civil asset forfeiture procedures are well known. Defendants in civil forfeiture cases are afforded few of the protections criminal defendants receive. There may be no presumption of innocence, no right to counsel, lax standards for evidence and lower standards of proof. These problems are compounded by state financial incentives for law enforcement. Not only can law enforcement seize property in morally and ethically dubious court proceedings, they’re encouraged to do so as a way to earn money and shore up their resources.

In this regard, federal law is no better than most state laws. Property owners may still have their property taken without ever being convicted of a crime and federal agencies have financial incentives to pursue forfeitures. A number of states, on the other hand, go beyond what is required by federal law and require prosecutors to meet higher standards of proof, feature more strict rules of evidence and sometimes require criminal convictions before a forfeiture can take place. It is these very protections the Department of Justice is subverting through its Equitable Sharing Program.

Initiated in 1986, the Equitable Sharing Program was designed to foster cooperation between state and federal law enforcement agencies in the war on drugs. Few states had forfeiture laws at the time and state and local agencies that participated could receive a portion of the income generated from federal forfeitures. Since then all 50 states have passed either civil or criminal forfeiture laws and now the equitable sharing program serves not only to foster cooperation, but as a way for state and local law enforcement agencies to circumvent their own state forfeiture statutes.

Once local law enforcement hands a case over to the feds, state law ceases to apply. This means that police departments in California, North Carolina, and Nebraska do not have to convict a person before taking their property. Agencies in Hawaii stand to receive as much as three times the amount of money from a forfeiture processed in federal court than they would if done through their own court system. State mandates to avoid policing for profit, such as in Missouri where forfeiture proceeds are supposed to be deposited in a fund for education, are bypassed as well.

This is an unfortunate reality for those of us who seek to limit the abuse of asset forfeiture and evidence of widespread, systematic evasion of state laws is mounting. Not only does it appear that state and local agencies are responding to the financial incentives of the equitable sharing program, but, more worryingly, as a way to bypass state legal procedures put in place to protect property owners. This evidence will be considered in part two and will be followed with recommendations for closing this loophole for good.

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1 Response » to “The Federal Loophole: Part One”

  1. [...] Here is what Americans for Forfeiture Reform has to say about equitable sharing: [...]

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