26 Dec 2015

The feds are making it a lot less profitable for local police to take your stuff

Quietly, just a few days before Christmas, the federal government made a huge change to the way it cooperates with local police departments: it's no longer giving local police departments a share of money or property seized from people who haven't committed crimes.
For decades, the federal government has basically given local police an easy loophole to let them keep a share of any assets they seize — rather than those assets going to other parts of state government, like education. Now, it's closing that loophole.
The Department of Justice says that it's changing its asset forfeiture policies for budgetary reasons — which means that the change might be only temporary, and the government might even end up reimbursing local police departments for any assets they don't get a share of now. But for the moment, it's a big deal.

How the federal government helps local police seize people's stuff

After someone is convicted of a crime, the government agencies that arrested and convicted him are allowed to seize property related to that crime (such as a car that was used to commit a robbery, or money earned selling drugs). That's called criminal forfeiture, and that's not something most people have a problem with.
But there's also a principle in the law, going all the way back to English common law, that says when property is involved in a crime, the government can start legal proceedings against the property itself for "participating" in criminal activity. The property doesn't get charged with a crime — instead, it's sued by the government, in a civil lawsuit. (Hence the name "civil asset forfeiture.")
Many states guarantee that any money seized by police, or any profits from auctioning off forfeited goods, goes right back to the law enforcement agency. A few states say police don't get to use any of the property they take — instead, that money goes toward something like state schools. 
In states that take most of the money from asset forfeiture for other purposes, there isn't much benefit to police in seizing assets at all — after all, they won't see much of the proceeds. But there's another option that allowed police to get a share of seized assets, regardless of how generous their state policies were — taking it to the federal government, which encouraged state and local police to share the wealth under a policy called equitable sharing.
Thanks to equitable sharing, when local police worked with federal agents on an investigation — or when they were simply arresting someone who'd also committed federal crimes — police could turn the property over to the federal government. The feds then gave 80 percent of the money right back to the local police (20 percent stayed with the feds.) That's a much bigger cut than police in most states would get by turning assets over to their state governments.

The DOJ put some limits on kickbacks in 2015 — but they didn't touch most of the money

In January 2015, Attorney General Eric Holder put limits on when the federal government could use equitable sharing to give seized assets back to local police. He stopped the federal government from "adopting" assets that had been seized by a local or state police department working on its own just because the person whose assets were seized also violated federal law.
But the DOJ still allowed local and state police to seize and keep assets when working with federal authorities on an investigation, and when the property was linked to public safety concerns — such as illegal firearms, ammunition, and explosives.
The exemption for joint investigations with the feds left most of the money captured by local and state police through the federal program untouched. Only about 13 percent of the equitable sharing revenue local and state police got in 2014 came from "adoptions," according to data from the Department of Justice.
As Eapen Thampy of the advocacy group Americans for Forfeiture Reform explained to Vox in January, police would be able to work with federal authorities or deputize officers into federal agents to continue most or all of their asset forfeiture activity.

The federal government is suspending state kickbacks for budget reasons — which means it might start the program up again later

The memo the DOJ sent Monday suspends all equitable sharing — regardless of whether the assets got seized by local or state police and "adopted" by the feds, or seized by a local-federal task force. So it's much broader than the January 2015 changes — and it doesn't provide easy workarounds, like simply deputizing local police officers into federal agents.
However, the DOJ makes it clear that this is happening for budgetary reasons. Under the funding bill Congress passed in December 2015, which funds the government through September 2016, the DOJ feels it isn't getting enough money from Congress to be able to turn forfeited assets back to local police. So it's "suspending" the sharing program until it starts getting more money again.
That means the next time Congress gives the DOJ more money, it could start kicking money back to local police again. Furthermore, it's essentially planning to keep the receipts for any assets it seizes while the equitable-sharing program is suspended — so if the DOJ starts getting more funding again, it can reimburse state and local police for any assets they would have gotten a share of while the government wasn't sharing.

This might mean police seize less assets — but will they need new ways of making money?

The most obvious outcome of the policy change: since local police will no longer get a share of assets seized through joint task-force work, they won't have as much incentive to participate in them. (They'll still get grants directly from the federal government for participating in task forces, though, so they'll still have some incentive.) It's likely that local and state police will start turning over more of the assets they seize to their state governments, rather than to the feds.
But the end of equitable sharing will mean that a whole lot of police departments will collect less revenue in 2016 than expected. And many local governments already feel they're strapped for cash — or are responsible for collecting enough revenue to fund a large share of city government, as a whole.

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