The Equitable Sharing Program was created in 1986 under President Ronald Reagan and was designed as a way to foster cooperation between state and local
law enforcement and the federal government in the battle against illicit drugs.
Participating agencies receive a portion of forfeiture proceeds and may use the
money to supplement their budgets. The money is often used to purchase new
equipment and to cover costs associated with narcotics investigations, such as
overtime pay for investigating officers.
The program was welcomed by state and local law enforcement.
A survey conducted by the Department of Justice in 1987 found that 96% of
participating agencies believed the program enhanced cooperation with the
federal government and 99% reported a willingness to contribute to joint
investigations to receive more money. Payments increased from $17.1 million in
the first year to $279 million just five years later and, most recently, more
than $447 million in equitable sharing payments in 2012.
Participation in the Equitable Sharing Program comes in two
primary forms. One is the joint investigation, where federal law enforcement
agencies collaborate with state and local agencies on an investigation. The
forfeiture is processed in federal court and the federal agency receives 20% of
the forfeiture. Any state or local agencies involved in the investigation
receive a portion of the proceeds based on their contribution to the case and
can receive a maximum of 80%. The money must be spent for law enforcement
purposes and is made directly to the agency.
The other way state and local police participate is referred
to as federal adoption. Local law enforcement can request for a federal agency
to take a forfeiture case from them and prosecute the case in federal court.
The property must meet certain thresholds to be adopted however the agency
taking the case needs not to have contributed to the investigation. Proceeds
are distributed similar to joint investigations; the federal agency keeps 20%
and the local agency receives a portion based on their contribution, up to 80%
of the total.
In both instances legal proceedings are moved from state to federal
court. Though many states based their statutes on the federal law, there are a
litany of differences between federal law and many state statutes, including
how much money law enforcement may receive and different rules for court. North
Carolina does not have a civil in rem
forfeiture statute and forfeiture can only occur after the conclusion of a
criminal trial, Hawaii only allows its law enforcement agencies to keep 45% of
forfeiture proceeds, and several states require prosecutors to meet a higher
standard of proof. Moving a case to federal court may allow an agency to
receive more money than they would if they forfeit the property themselves. It
also may make forfeiting the property easier due to a lower standard of proof
or the lack of a conviction requirement.
There are other reasons that a local agency may hand a
forfeiture case to the federal government. A local prosecutor may decline to
take the case and the only way the property can be forfeit is if it is adopted
by a federal agency. Additionally, certain types of property require certain
types of infrastructure or expertise to house and maintain. A small department
simply may not have the ability to house or maintain a yacht or a plane while
they battle the property owner in court. There is the risk that by the time the
case comes to a close the property would be rendered worthless by damage or
age.
The Equitable Sharing Program continues to be a boon for
both federal and state officials after 27 years. Payments to the states
increased more than $244 million in the past decade, but this explosive growth
has not come without a price or without controversy. Legal and constitutional questions remain about the processes used in civil in rem forfeiture and how financial incentives may be corrupting and distorting law enforcement's priorities.
Part Three: Controversy
