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Institute for Justice Attacks Equitable Sharing

On October 6, 2011, in federal, states, by John Payne

The Institute for Justice (IJ)–a “merry band of libertarian litigators,” as George Will described them–has joined a lawsuit to protect Russell and Patricia Caswell from having their Tewksbury, Massachusetts motel forfeited by the federal government. The Caswells are not charged with any crime, but a minuscule number of their patrons have been arrested over the past two decades, which makes their property fair game to the government. If you aren’t familiar with how this is legally possible, IJ explains it in this short video:

The video is accompanied by a briefing paper, which discusses how federal equitable sharing laws encourage state and local law enforcement agencies to work around their own state’s stricter forfeiture rules:

And it is what has happened to the Caswells. The Tewksbury police do not stand to get a share of the proceeds of Motel Caswell under Massachusetts civil forfeiture law, but rather under federal law. Under an equitable sharing agreement, the DOJ will pay as much as 80 percent of the proceeds from the motel directly to the Tewksbury police, leaving the Caswells with nothing but the loss and destruction of their life’s work. Not only is it doubtful that the Tewksbury police could successfully take the Caswells’ property under Massachusetts law, but if they did, they would receive only 50 percent of the proceeds…

The Caswells’ case shows how local police can take advantage of federal equitable sharing to secure forfeiture proceeds they might not be able to under state law. But does equitable sharing encourage state and local law enforcement to evade state civil forfeiture laws? The evidence says yes.

In a 2011 study published in the Journal of Criminal Justice, researchers Jefferson Holcomb, Tomislav Kovandzic and Marian Williams examined the relationship between state civil forfeiture laws and equitable sharing receipts by state and local law enforcement.

They found that in states where civil forfeiture is more difficult and less rewarding, law enforcement agencies take in more equitable sharing dollars. In other words, police and prosecutors use equitable sharing as an easier and more profitable way to secure forfeiture funds.

The paper also cites AFR’s own Charles Kucher, whose work further supports the conclusion that equitable sharing works against state laws that protect property owners. We will be publishing a revised version of Charles’ study in the near future.

IJ’s lawsuit not only seeks to protect the Caswells from this manifestly unjust forfeiture but attacks the equitable sharing program directly by arguing that it is a violation of the Tenth Amendment. We wish them luck and will do whatever we can to support them in this vital mission!

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4 Responses to “Institute for Justice Attacks Equitable Sharing”

  1. Blake says:

    OK, this is wrong, obviously.

    But “only” .05%? That’s over 6,000 arrests! Nearly one a day for 20 years!

  2. [...] provides a concise overview of civil asset forfeiture laws in the United States with the recent Motel Caswell seizure in Massachusetts as the key example. Her conclusion is worth quoting extensively: Not only does civil forfeiture [...]

  3. [...] provides a concise overview of civil asset forfeiture laws in the United States with the recent Motel Caswell seizure in Massachusetts as the key example. Her conclusion is worth quoting extensively: Not only does civil forfeiture [...]

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