On December 21, 2015 the United States Department of Justice suspended the Equitable Sharing Program in which state, local and tribal law enforcement agencies can obtain a portion of the assets they have seized (either as part of a federally sponsored law enforcement operation or as the result of their own seizures which are referred to the federal government for processing as “adopted” forfeitures). The suspension, according to M. Kendall Day, Chief of the Department’s Asset Forfeiture and Money Laundering Section, was necessitated by deep budget cuts forced on the Department by Congress. See here.
When he suspended the Equitable Sharing Program, Mr. Day set off a national effort by state and local law enforcement agencies which are dependent upon “shared” assets to fund some of their equipment purchases, staff overtime payments and budget shortfalls. Day’s announcement also fueled the hopes of many critics of federal and state asset forfeiture programs who think that the equitable sharing of assets incentivizes law enforcement to seize assets in order to pad their own budgets and equip their own departments.
When Mr. Day suspended the program he urged state, local and tribal law enforcement agencies to continue to seize assets and to process those seizures through the federal asset forfeiture program. He pledged the Department of Justice’s long-term commitment to the sharing program and promised to restart it when and if sufficient funds became available. On March 28, 2016 he made good on that promise:
“It’s worth repeating that we did not make the decision to defer Equitable Sharing payments lightly, and it was always our intent to resume payments as soon as it became financially feasible. Thus, in the months since we had to make that difficult decision, we explored alternative options, while also keeping a close eye on incoming receipts. And now, we are finally at a point where it is no longer necessary to continue the deferral. Therefore, effective immediately, we are resuming payments and agencies will receive the full amount of their share of any approved Equitable Sharing payments.”
See full text of Day’s statement here.
Mr. Day’s statement is interesting in a couple of ways. First, he laments the “months” that have passed since the program was suspended. To be clear, the program was only suspended for 98 days; hardly the long term suspension that the Department’s original announcement suggested and that law enforcement feared. Second, Day attributes the resumption of the program to “financial feasibl[ity].” And that raises an interesting question: in the 98 days since the program was suspended due to (depending upon how the Department calculates it) a $458 million or a $1.2 billion shortfall in its budget, how was that financial gulf bridged? The pace of seizures must have continued at a very high rate for that gap to have been closed in such a short period of time.
In our report in January of this year we noted that law enforcement was fighting back against the attacks on the Equitable Sharing Program. We highlighted the effort of six law enforcement organizations that had complained to President Obama about the suspension of the program and threatened to withdraw from joint task force operations. The Department is remaining silent on the issue of whether these threats helped them to find the resources necessary to restart the program. But one thing is for sure, with restoration of the incentive to participate in the asset forfeiture program, it is likely that seizures of assets by federal, state, local and tribal law enforcement agencies will continue aggressively for the foreseeable future.
