One of the many controversial aspects of asset forfeiture is the Department of Justice’s (DOJ) equitable sharing program, which, after a four-month hiatus, was reinstated in March.
The equitable sharing program, simply put, is local and state law enforcement’s cut of forfeited assets. The DOJ pays agencies for their assistance in seizing property in proportion to each entity’s level of involvement in a particular seizure.
The Institute for Justice called Texas law enforcement, “some of the nation’s most aggressive participants,” in the equitable sharing program.
From 2005 through 2015 the state received over $317 million from the federal government for its role in asset forfeitures.
In 2015 alone, the State of Texas received over $28 million in proceeds from the DOJ program. Nearly a quarter of that came from just two city police departments – Houston and McAllen. Both municipal departments received more equitable sharing funds than the entire Texas Department of Public Safety (DPS), meaning they participated in more asset seizures than the law enforcement agency for the entire state.
Oddly enough, the agencies receiving the least from the DOJ were just outside of Houston. Suburban departments such as the Pearland Police and Montgomery County Constable Precinct 2 received only $270 and $71 respectively in equitable sharing proceeds.
Though the Texas Legislature instituted some reporting requirements on the practice last year, the data made readily available from the Office of Attorney General provides no more than statewide total amounts. Such a lack of clarity in Texas’ annual forfeiture reports makes it difficult to identify how much of the forfeitures, and corresponding equitable sharing payments, are derived from civil versus criminal asset seizures.
The problems with equitable sharing are twofold. First, it incentivizes local and state law enforcement to seize property so they can get “their cut”. Also, each entity negotiates their own equitable sharing contract so there is no universal standard – it is whatever percentage they agree on.
It may be difficult to limit the equitable sharing transfers from the federal to state and local governments, but that doesn’t mean nothing can be done. The state legislature can establish a fund pool for payments received by the federal government. By breaking the direct cash flow from the federal government to independent agencies, the incentive to abusively seize private assets would diminish. Local entities wouldn’t be able to utilize the subsequent proceeds to boost their budgets or outfit their offices.
Texas needs to reform equitable sharing rules to break law enforcement’s reliance on forfeited assets for things that their budgets should cover. Breaking the dependence is the only way to deter abusing the asset forfeiture process.