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Put Seized Assets into Public Defense

Attorney General Jeff Sessions reversed limits on civil asset forfeiture enacted during Obama’s presidency on July 19, unilaterally expanding the power of law enforcement officials to seize private property without a warrant. Civil asset forfeiture, which allows police to take property suspected of being involved in a crime without formally charging the owner of the property, was overgrown even before Sessions’ regulatory rollback.

Predatory regulations encourage for-profit policing. Law enforcement agents know that they receive money back from the federal government whenever they seize assets, thereby encouraging them to seize these assets more and more frivolously to fund their agency. Ideally civil asset forfeiture would be abolished altogether, but it will almost certainly endure the Trump administration. To mitigate harm, the government should require law enforcement to give 80 percent of seized assets to underfunded public defense programs. Though funneling the assets into public defense won’t refund citizens who have been robbed by law enforcement, it will provide a sizable disincentive for officers to seize funds unnecessarily.

Sessions reinstated the Equitable Sharing Program, which allows state and local law enforcement agencies to seize property, send it to a federal government fund, and receive up to 80 percent of the assets’ value as a kickback directly to the department. Since Equitable Sharing strikes a deal between the federal government and local law enforcement, it leaves state legislatures out of the picture.

Many states––such as Maine, Indiana, and North Carolina––impose stricter regulations on civil asset forfeiture than the federal government does. Because these agencies work directly with the federal government when they use the Equitable Sharing Program, they are allowed to bypass state laws. In fact, states that have more stringent forfeiture laws see more agencies participate in Equitable Sharing.

Forfeiture has grown from just under $94 million seized each year in 1986 to over $4.5 billion in annual takings by 2014. Eighty-seven percent of the forfeitures from 1997 to 2013 were civil rather than criminal, meaning the assets can be taken without a conviction.

A study done by the Institute for Justice, a pro-civil liberties organization, found that Equitable Sharing programs increase for-profit policing policies. Cops know that they can take private property with impunity and put up to 80 percent of its value directly into their departments’ coffers.

Many people, especially the poor, lack the legal resources to fight these unjust forfeitures. The value of seized assets often pales in comparison to court costs, and the law enforcement agencies know this. As of 2014, asset forfeitures exceeded burglaries in amount taken, nationwide.

To disincentivize this predatory policing, the federal government should strike down Equitable Sharing and mandate that at least 80 percent of civilly-seized assets are given to local public defense.

Public defense programs are chronically underfunded nationwide. A study by the American Bar Association states that although public defense funding rose to just under $5.3 billion in 2008, many areas “remain in crisis.” Funneling money from civil asset forfeiture to public defense provides a solution to two problems plaguing our criminal justice system––predatory seizures and underfunded public representation.

If Equitable Sharing is abolished and law enforcement officers know the bulk of the money they seize will go to public defense, not their agency’s bank account, they will take civil asset forfeiture much more seriously. Rather than shaking down innocent civilians for pocket change at a traffic stop, cops will view forfeiture as a serious undertaking that will financially support defendants in local courts.

The U.S. government needs to change the way law enforcement views civil asset forfeiture. Under Equitable Sharing, law enforcement agencies are reminiscent of Scrooge McDuck swimming in pools of ill-gotten money. These officers should instead regard civil asset forfeiture as a last resort in all situations. Only by giving these seizures direct consequences will the government change this predatory outlook.

The FBI website claims asset forfeiture is used to “disrupt, dismantle, and deter those who prey on the vulnerable for financial gain.” Unfortunately, the multi-billion dollar civil asset forfeiture program preys on U.S. citizens, at least in its current form. Using money from asset forfeitures to increase the quality of public defense will curb this injustice.

Dylan Moore is currently a Young Voices Advocate and an undergraduate student at Indiana University. Follow him on Twitter @d_v_moore.

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