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The Federal Loophole: Part 3

On October 11, 2011, in federal, states, by Charles Kucher

At last, consideration needs to be given to closing the loophole. Obviously the most direct and effective way is to shut down the federal equitable sharing program. This would prove difficult for several reasons. Hundreds of millions of dollars are deposited in the federal Asset Forfeiture Fund each year and the federal agencies that use that money will not want to let go of that revenue stream. Additionally, state and local agencies that use equitable sharing to circumvent state laws will not want to lose the option or the attached revenue. Yet there are a number of reforms that could be implemented to limit the evasion of state law.

The program was created to promote cooperation between state and federal law enforcement and to diffuse the cost of war on drugs, but in its current form allows cases to be adopted when all of the investigative work has been done by local law enforcement. That is not cooperation. Adoptions should be limited to cases where there is a substantial federal interest in the case and the adopting agency makes a substantial contribution to the investigation that yielded the forfeiture. This would limit the number of cases that are handed off simply to avoid state law and would encourage cooperative investigations.

Alternately, the rules for adoption could be changed to require a conviction at the state level for all adoptive forfeitures. This would ensure that no due process reforms could be bypassed for more favorable federal rules. It would also push state and local agencies to perhaps go beyond what their state requires in order to reap a more lucrative financial reward.

Disparities between state and local law may make federal adoption more lucrative for the local agency. In addition to limiting law enforcement’s take, some states direct forfeiture proceeds to purposes not related to law enforcement, such as drug treatment programs or school funds. Equitable sharing guidelines currently stipulate that payments may only be used for law enforcement purposes. The guidelines should be rewritten to distribute equitable sharing payments in the same manner as state law stipulates. This would prevent law enforcement from skirting laws to receive more money and from receiving money their legislators never intended them to have.

States need to consider adoption when developing forfeiture reforms. Requirements can be placed on turnover orders. Requiring certain criteria must be met before a state court can give a federal agency jurisdiction over the property gives state courts the ability to review adoptive forfeitures and prevent them from being used to avoid state courts. State laws still means a lot and until comprehensive federal forfeiture reform occurs, states can improve their own laws by requiring convictions before forfeiture, increasing their standards of proof and limiting financial incentives for law enforcement.

The circumvention of state forfeiture law through the use of equitable sharing needs to come to an end. Property rights should not suffer the whims of law enforcement and the federal government should not be subsidizing the subversion of state forfeiture reform. If the program is truly about increasing cooperation between state and federal law enforcement, then wholly local cases should not be considered for adoption and procedures protecting property owners should be respected.

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