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Justice Department Restarts Program Used to Take People's Property Without Due Process

03/31/2016

The Department of Justice, on Monday, restarted the Equitable Sharing Program, which allows federal law enforcement agencies to coordinate with their state and local counterparts to pursue forfeiture of seized money and property under federal civil asset forfeiture laws. The program, which distributes up to 80 percent of the proceeds from these forfeitures to the state and local law enforcement agencies, was suspended in December because of budget constraints. Payments owed were deferred.

In From High Seas to Highway Robbery: How Civil Asset Forfeiture Became One of the Worst Forms of Government Overreach, FreedomWorks offered some background on the Equitable Sharing Program. Congress, in 1984, passed the Comprehensive Crime Control Act, which created the Department of Justice's Assets Forfeiture Fund and allowed bureaucrats to develop the Equitable Sharing Program. Deposits to the fund grew from nearly $94 million in 1986 to $4.5 billion in 2014.

The Equitable Sharing Program is, however, a symptom of the real issue. State and local law enforcement agencies working with federal agencies, through drug tasks forces or the like, can seize property and allow the federal government to adopt it to begin forfeiture proceedings under federal forfeiture laws.

Federal forfeiture laws lack any substantive protections for innocent property owners. Seized property can be subjected to forfeiture based on "a preponderance of the evidence," or a 51 percent likelihood that case the government made against the property is true. Compared to criminal procedures, where "proof beyond a reasonable doubt" is evidentiary standard the government must meet, the standard in federal forfeiture cases is incredibly low. Of course, the difference is also that the property owner in forfeiture cases does not have to be arrested, let alone charged or convicted, for their property to be permanently taken by the federal government and divided up between the state and local law enforcement agencies involved in the seizure.

Property owners who try to challenge these federally facilitated forfeitures face significant hurdles. The Fifth Amendment states that "[n]o person shall be...deprived of life, liberty, or property, without due process of law." But in federal forfeiture cases, a property owner is not afforded legal counsel if they do not have the means to hire an attorney and they are not extended the presumption of innocence, a core and long-established principle of the American legal system. This is because forfeiture cases are not brought against property owners. In a stroke of legal fiction, the cases are brought against the property -- inanimate objects -- rather than the property owner.

Take Joseph Rivers, for example. In April, this 22-year-old man was traveling by train from Michigan to Los Angeles with his life savings. His train was boarded in Albuquerque by DEA agents. They asked to search Rivers' bags. Beliving he had nothing to hide, Rivers consented to the search. The agents found some $16,000 in cash, which was Rivers' life savings -- money that he planned to use to fulfill his dream of working in the music industry. Rivers was not arrested or charged. In fact, his mother corroborated his story with the agents. Asked about the seizure, a DEA spokesman said, "We don’t have to prove that the person is guilty. It’s that the money is presumed to be guilty."

The Equitable Sharing Program is not only concern because it facilitates abuse of federal forfeiture laws but also because many state and local law enforcement agencies in states with protective forfeiture laws circumvent restrictions to pursue property under federal law. Thankfully, some states, such as New Mexico, have wised up to this and severely limited that practice. Lawmakers in other states, though, such as California, have tried to prevent state and local law enforcement from circumventing state law and were unsuccessful because of a strong, though misleading, lobbying campaign conducted by state and local law enforcement, aided by the Department of Justice.

According to a fact sheet from the Department of Justice, the equitable sharing payments owed to state and local law enforcement will begin immediately. The Assets Forfeiture Fund, from which these payments are made, is expected to remain solvent until September 30, the end of the fiscal year.

There has been a lot of talk about federal civil asset forfeiture reform in Congress. Action, however, has been severely lacking. The Fifth Amendment Integrity Restoration (FAIR) Act, introduced by Sen. Rand Paul (R-Ky.) and Rep. Tim Walberg (R-Mich.), is the only legislation that has been introduced that offers property owners due process and ends the Equitable Sharing Program. Others have discussed legislation to end the program but have not yet filed a bill. Absent action, either a bill that ends it or restrictions in the budget or appropriations process, the Equitable Sharing Program is here to stay.