Retrench of DOJ's Equitable Sharing Program Could Be Boon to N.C. Schools
“Equitable Sharing” sounds so reasonable. Who could argue with it? Here’s what it is, and what it does: The Justice Department’s Equitable Sharing program allows federal law enforcement agencies to “adopt” seizures of property conducted by state and local law enforcement agencies. Under this program, when state and local officials seize property suspected of being involved in a crime, the federal “adoption” then allows the partners in (prosecuting) crime to divvy up the goods. DOJ gets roughly 20%, and the remaining 80% or so is returned to the state agencies that made the initial haul, even if the original owner is never convicted of a crime. Not everyone loves this scheme. In fact, the program enjoys the distinction of attracting fire from commentators from across the political spectrum. And that criticism has only drawn sharper in the recent debates over the “militarization” of police forces in light of the events in Ferguson, Missouri, as Equitable Sharing funds are often used by state and local law enforcement agencies to buy military-grade equipment.
Which is why it might have been a big deal that last Friday, Attorney General Eric Holder issued an order severely limiting the Equitable Sharing program. It’s debatable whether this policy shift will meaningfully alter the general asset forfeiture landscape—the Washington Post certainly thinks so, Reason, not so much. With exceptions built into the Attorney General’s order, only time will tell.
But we thought it might be interesting to see how this decision could affect North Carolina. Justice Department reports to Congress indicate that about $160 million flowed to North Carolina law enforcement agencies through the federal Equitable Sharing Program from 2000 to 2013. It’s hard to know the percentage of those funds that were purely adoptive seizures (now largely prohibited) versus those that were the result of a joint state/federal law enforcement operation (after the order, still allowed). But it’s likely that a lot of money being seized will need to find a new home.
Interestingly, it’s not entirely clear where that home will be. North Carolina does not have a meaningful civil asset forfeiture legal regime. Generally, assets can only be forfeited to the State after the asset’s owner is convicted of the underlying crime, which is a significantly greater legal burden than the federal standard for adoptive seizures.
Assuming for the sake of argument that the seized property is ultimately forfeited, it seems clear that the money will not go to state and local law enforcement, as it has in the past, but will go to fund public education in the county where the asset was seized and forfeited. Article IX, Section 7 of the North Carolina Constitution provides that “the clear proceeds of all penalties and forfeitures and of all fines collected in the several counties for any breach of the penal laws of the State, shall belong to and remain in the several counties, and shall be faithfully appropriated and used exclusively for maintaining free public schools.”
Given all this, we’re left with at least two questions: First, in light of this federal policy development, will the North Carolina legislature respond by creating a civil asset forfeiture legal regime? Second, if civil asset forfeiture is given a statutory form, will the proceeds of North Carolina forfeitures continue to flow to the public schools, or will the local law enforcement community seek an amendment to the state constitution to redirect that money?
In any event, we are confident that it will be interesting to watch this issue play out over the next year.