Perhaps the omnibus passed last week had at least one small silver lining. The Department of Justice notified police departments that it would no longer provide them with an option of partnering with them on asset forfeiture cases and sharing the proceeds, thanks to budget cuts put in place in the final FY2016 budget. As the Washington Post’s Christopher Ingraham explains, the partnership allowed local police departments to evade tougher scrutiny on forfeiture cases and use the lax federal law to keep much more from their seizures:
The Department of Justice announced this week that it’s suspending a controversial program that allows local police departments to keep a large portion of assets seized from citizens under federal law and funnel it into their own coffers.
The “equitable-sharing” program gives police the option of prosecuting asset forfeiture cases under federal instead of state law. Federal forfeiture policies are more permissive than many state policies, allowing police to keep up to 80 percent of assets they seize — even if the people they took from are never charged with a crime.
The DOJ is suspending payments under this program due to budget cuts included in the recent spending bill.
“While we had hoped to minimize any adverse impact on state, local, and tribal law enforcement partners, the Department is deferring for the time being any equitable sharing payments from the Program,” M. Kendall Day, chief of the asset forfeiture and money laundering section, wrote in a letter to state and local law enforcement agencies.
It wasn’t just the budget cuts, but also the losses that the DoJ has sustained with the program:
In addition to budget cuts last year, the program has lost $1.2 billion, according to Day’s letter. “The Department does not take this step lightly,” he wrote. “We explored every conceivable option that would have enabled us to preserve some form of meaningful equitable sharing. … Unfortunately, the combined effect of the two reductions totaling $1.2 billion made that impossible.”
In truth, this program seems indefensible, both morally and on the basis of federalist principles. Let’s start with the latter. Local police have to operate within the Constitution, of course, but their oversight and accountability start with their local communities and the states in which they operate. States have responded to the controversies over asset forfeiture by restricting the circumstances in which police can seize, keep, and convert property to their own use. Having the federal government provide a back door around those restrictions in exchange for a share of the loot violates the federalist principles.
Morally, though, it’s even worse. It interferes with the relationship the police have with their communities in a way that erodes trust and accountability. If the local community and the state cannot create the legal code and the manner in which it is enforced, then the law enforcement agencies lose their moral authority to operate. Furthermore, states have passed laws limiting the percentage of assets police can keep to dial down the incentives for abuse. The DoJ program defeated those efforts.
Most egregiously, the DoJ provided a way to allow police to keep seized assets even in the absence of a conviction when they otherwise might not have been able to do so. That is itself a morally repugnant policy. That’s why some states and local communities have passed laws to prevent it — laws that the DoJ conspired to thwart.
This doesn’t make the omnibus a good bill, or even an acceptable compromise. It’s terrible for a number of reasons. However, when it comes to FY2017’s budget, let’s keep this particular cut in place and put a stake through the heart of this particular end run around federalism.