A Federal police-for-profit program has been diminished per Congressional action and can no longer reward local communities for seizing homes, cars and property, per a new Department of Justice letter issued December 21.
The letter informs all participants that the Department of Justice Asset Forfeiture Program (AFP) is "deferring for the time being any equitable sharing payments from the Program. Thus, effective immediately, the Department will defer all equitable sharing payments to our state, local, and tribal partners and transfers of any items for official use."
The DOJ cites a loss of $1.2 billion in funding allocated over the last two federal budgets as reason for the drastic move. The DOJ is not abandoning the program and promises that, "should the budget picture improve," they will "reinstate sharing distributions as soon as practical and financially feasible."
Combined with a joint Justice and Treasury federal policy change announced January 16, 2015, which prohibits federal agencies from adopting most property seized by local and state agencies, the nature of federal asset forfeiture is forever changed.
The culprits in this program's demise are the media attention on the program's abuses, and the legislation that reflects the societal change expressed by lawmakers.
MEDIA ATTENTION ON THE FLAWS
The AFP program's stated mission, from the Office of Inspector General (OIG):
The DOJ asset forfeiture program has three primary goals: (1) to punish and deter criminal activity by depriving criminals of property used or acquired through illegal activities; (2) to enhance cooperation among foreign, federal, state, and local law enforcement agencies through equitable sharing of assets recovered through this program; and, as a by-product; (3) to produce revenues to enhance forfeitures and strengthen law enforcement.
Through the program, local agencies received up to 80% of the asset value of items forfeited in federal investigations. Critics allege that, by pursuing crimes that generate money for the police department instead of those which are directly related to danger to the community, arrest rates in rapes and homicides are shockingly low while those for prostitution and marijuana offenses are ridiculously high.
Media has exposed the failures of a policing for profit program. TheHill.com reports that, "Police departments would then frequently spend the proceeds from the seizures on weapons and vehicles, a Washington Postinvestigation found. The Post also found that they sometimes spent the proceeds on luxury cars and other purchases unrelated to law enforcement."
Even the national organization representing Sheriffs know the abuses are there. In response to the January letter from Holder, the National Sheriffs' Association wrote, "The Attorney General... based these changes on assumptions regarding alleged misuses of the program."
A spokesman for the Institute for Justice, a watchdog organization, was quoted as saying, "Many police, sheriffs and prosecutors want to circumvent state laws because outsourcing forfeiture litigation to the federal government is lucrative... Law enforcement revealed that its true interest in forfeiture is policing for profit---not public safety."
Asset forfeiture programs are in trouble in a number of states, including New York and the city of Dallas, but are evolving well in Minnesota and New Mexico. Citizens have called for the removal of the federal funding program for many years, especially in Michigan.
Freedomworks, a grassroots organization watchdogging the asset forfeiture scene in America, gave Michigan a "D" rating in their assessment of state policies.
Jonathan Oosting, reporting for MLive, wrote: "The Mackinac Center for Public Policy and the American Civil Liberties Union of Michigan, in a recent joint report, recommended eliminating civil asset forfeiture entirely, requiring a conviction before property could be forfeited.
The report also recommended Michigan stop allowing local law enforcement agencies to pad their own budgets through forfeiture, eliminating any profit motive by directing revenues to a separate government department."
Lansing's police department received $823,960 from the AFP over a four year period ending in 2012. Their use of the funds was audited by the Inspector General and multiple violations of the AFP rules were found.
Taylor's police department received $800,009 over two years ending in 2013. Their federal audit also revealed flaws in record keeping, but none in expenditures.
Plymouth Township was discovered to have abused their forfeiture funds. They were given $1.9 million over 4 1/2 years ending in 2013. A report found that police agencies use the monies to buy "floor mats, civilian salaries and conference room chairs." Township officials bought cars with the forfeiture money: allowable, but they forgot to reimburse the fund for $96,000 in rebates they received. Their federal audit did not end well.
Even the Detroit News, a conservative paper with a national profile, doesn't like asset forfeiture. In theirEditorial from January 28, the News had this to say:
Police in Michigan can seize private money or property based simply on a suspicion of guilt or involvement with criminal activity, even if the suspect has committed no crime and is never convicted of one.
Civil asset forfeiture, as it's formally called, circumvents the constitutional premise that an individual is innocent until proven guilty, and needs serious reform.
A 26-year veteran of the Michigan State Police said it best, when interviewed by Michigan Capitol Confidential. Retired MSP trooper Ted Nelson said, "Medical marijuana has presented a huge opportunity for police to bring in revenue through seizures.
"Marijuana is the big money. Marijuana has always been the big money for asset forfeiture."
"If you've got folks out there that are medical marijuana patients," state Rep. Jeff Irwin (D-Ann Arbor) told Freedomworks.org, "there's no way they should be getting raided and having police come in with masks and guns drawn and taking their assets."
LEGISLATIVE RESPONSE- STATE AND FEDERAL
It would seem that lawmakers on both sides of the aisle agree that asset forfeiture is a failed program and have de-funded it.
Lawmakers specifically cut the budget for the AFP in two different pieces of legislation passed by the Republican-dominated Congress. The Bipartisan Budget Act of 2015 mandated a PERMANENT cut (rescission) of the AFP budget by $746 million. On December 18, 2015, the new Consolidated Appropriations Act of 2016 made a second rescission of $458 million.
Together, those targeted cuts accounted for the $1.2 billion cited by the DOJ letter as reason for the program's failure. Congress has certainly been speaking out on the issue, including Michigan Rep. John Conyers Jr., who joined a handful of lawmakers in January and issued a letter to Holder urging action.
So how is this going to change local police budgets? Not much, or a lot, according to the numbers.
The OIG cited the Lansing Police Department's annual budget as $30,029,430 for Fiscal Year 2012. The LPD received $823,960 over four years from the program, making estimated annual AFP revenue as $205,990, or just 0.7% of the Department's budget.
In Taylor, their FY 2013 budget was approx. $11 million. Losing $400,000 per year from federal equity sharing equals 3.6% of the annual budget.
Additionally, the OIG wrote that, "Pursuant to the Equitable Sharing Guide, equitable sharing revenues must be used to increase or supplement the resources of the receiving state or local law enforcement agency. Equitably shared funds shall not be used to replace or supplant the resources of the recipient." Federal funds must be used as extra money, not for everyday expenses, per the federal mandate.
In a classic case of not following the intent, the Lansing Police Department used AFP funds to "pay overtime wages," "pay informants," and as "buy money for special operations." Although those are typically expenses covered by a municipal police budget, the OIG found no fault with the LPD's use of federal funds for these purposes. These are the contradictions and frustrations that activists have faced for years.
The January letter from Attorney General Holder stated that federal adoptions of state-seized items were to stop, with some exceptions. The 'adoption' program was developed to keep assets from being returned to criminals by local courts at a time when states did not have forfeiture programs of their own. "Today, however, every state has either criminal or civil forfeiture laws, making the federal adoption process less necessary," Holder wrote.
In response to the January declaration, Michigan Rep. Tim Walberg issued this statement: "Today's announcement is welcome news for the due process and property rights of the American people... Ultimately, Congress must enact meaningful reform which goes beyond addressing just this program and put an end to civil liberty abuses under civil asset forfeiture."
On a state level, Michigan's legislature enacted a 7-bill package to address the unsettling problems of asset forfeiture and policing-for-profit in 2015.
"The legislation includes five bills amending various law enforcement-related statutes to establish the transparency and reporting requirements; and two others that increase the burden of proof for forfeiture from a "preponderance of the evidence" standard to "clear and convincing evidence,"" Jack Spencer wrote inMichigan Capitol Confidential.
Governor Rick Snyder signed the legislation on October 20, 2015; sponsors and critics of the legislation both agree that it does not go far enough to address the rampant abuses found within the state's asset forfeiture framework. State-based asset forfeiture programs brought in $24 million in 2014, per the Michigan State Police.
Source: The Compassion Chronicles