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The Federal Loophole: Part 2

On August 25, 2011, in Uncategorized, by Charles Kucher

Federal adoption offers law enforcement two primary advantages over processing forfeitures in state court. First, law enforcement agencies in states that restrict the amount of money an agency can receive through forfeiture may receive more money than if they used state courts. Second, technical differences between state and federal forfeiture procedure, such as burden of proof, where the burden is placed, and whether a conviction is required can make successful forfeitures easier.  Recent scholarship has produced evidence that law enforcement in states that place greater restrictions on forfeiture than the federal government does are using equitable sharing as a way to bypass both of these restrictions.

Concerns about civil forfeiture’s financial incentives have permeated the debate for the past 20 years, but until recently there was little empirical proof it affected law enforcement’s behavior. In a survey conducted by Washington State University, nearly 40% of the responding agencies said that forfeiture is necessary as a budget supplement. With such a large number of agencies relying on forfeiture revenue, it is logical that they would seek to maximize the revenue produced from individual forfeitures. As previously noted, agencies in some states can earn more by using federal courts instead of state courts and vice versa.

A study conducted by researchers at the University of Texas found that law enforcement in states that restrict forfeiture proceeds are bypassing their state laws through the use of federal adoption in order to receive more money. Fewer equitable sharing payments were being made to states that did not restrict forfeiture income than states that restricted forfeiture income. This suggests that agencies rationally choose the avenue that yields the most revenue. This allows law enforcement to receive all of the money since federal equitable sharing guidelines dictate that all money must be used for law enforcement purposes. This is particularly disconcerting because some states, notably Missouri and Indiana, direct forfeiture funds to schools, not law enforcement.

The authors of the study conclude that, though state laws are being bypassed, “It is difficult to fault law-enforcement agencies for exploiting legal arrangements that maximize their potential to offset the high costs associated with America’s war on drugs.” However, the authors do not address the procedural differences between state and federal law. Even if one excuses the circumvention of state forfeiture distribution law based on the premise that law enforcement deserves that money regardless of what their state legislatures say they may have, it is quite difficult to excuse the circumvention of state laws designed to protect property owners from forfeiture abuse. Law enforcement can effectively undermine the due process rights state legislators have granted to the very citizens they have sworn to protect.

A study published by the Institute for Justice addressed these concerns and found that as standard of proof at the state level increased, so did equitable sharing payments. Additionally, most states and the federal government place the burden of proof on the property owner, essentially reversing the maxim of innocent until proven guilty. States that placed the burden on the government, on the other hand, saw higher amounts of equitable sharing.  Furthermore, unpublished research suggests that conviction requirements also affect equitable sharing payments, with states that require criminal convictions before forfeiture can occur receiving more equitable sharing money than those that do not.

These results suggest that not only is law enforcement using federal adoption to receive more money, but to bypass state courts for more favorable and lenient federal courts. Originally intended as a way to foster cooperation between state and federal law enforcement in the war on drugs, equitable sharing has become a way for police to take wholly local cases and hand them off to the federal government simply because it is the path of least resistance.

This is inexcusable. Police should not be allowed to sidestep procedure put in place by the people they serve. They should not be able to receive more revenue than their controlling legislatures allow. It undermines reform efforts and makes a mockery of the independence of state courts. This loophole must be closed. My concluding post will detail several reforms to minimize the effects of and eliminate adoptive forfeiture.

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