Following budget cuts in the recent spending bill approved by Congress, the Department of Justice has suspended its controversial asset forfeiture "equitable sharing" program. The program has made headlines in recent years due to accusations that law enforcement is motivated more by profit than by an actual desire to impede crime, as well as concerns about a lack of due process.
Civil forfeiture is a contentious legal process that allows law enforcement to seize assets from persons suspected of involvement in criminal activity, without requiring that the individuals even be charged with a crime. In these civil proceedings, the government is the plaintiff, and the seized property is the defendant. For example, a hypothetical case might be styled United States of America v. $100,000 in U.S. Currency. Since the proceedings are civil, rather than criminal, the government has a much lower burden of proof. Many times, the owners of the property do not have access to the funds necessary to mount a legal defense of the property.
Under the "Equitable Sharing" program, state and local law enforcement agencies can seize property and turn it over to the federal government. Once the federal government completes the legal forfeiture process, they share the proceeds with the state and local law enforcement agencies.
As certain states have enacted laws making it more difficult to seize property through civil forfeiture, law enforcement agencies in those states have increasingly relied on the federal equitable sharing program, which allows them to bypass their own state's laws. For example, California law only allows the police to keep 66.25% of forfeiture proceeds. Under the federal program, however, the can keep 80%. In 2013, California police seized $28 million in cash and other property using state law, compared to $98 million under federal law. This recent decision to suspend the program was unsurprisingly met with criticism from law enforcement groups, including the National Sheriff's Association and the National District Attorney's Association, who cite the federal program as a key tool in combating crime.
Our firm has successfully represented individuals and businesses in both civil and criminal forfeiture proceedings. Often, these proceedings run parallel, with the civil case put on hold while the criminal case is pending. If the government is unsuccessful in the criminal case, the civil proceedings can give them a second opportunity to keep the seized property, with the burden of proof lowered.