Cristal Starling awoke to banging and shouting on October 29, 2020. The police smashed open her apartment door in Rochester, New York, and ordered everyone on the ground.
More than two years later, Starling is still fighting to recover $8,040 she lost in the predawn raid. The case is one of thousands showing the need for the Fifth Amendment Integrity Restoration (FAIR) Act, House Resolution 1525, a bipartisan effort to curb forfeiture abuses nationwide.
Starling saw firsthand what can go wrong under current federal laws. Officers with the Rochester Police Department came looking for her then-boyfriend, who was suspected of selling drugs. He was sleeping in the apartment. The only other occupants were Starling and her grandnephew, a child she has cared for since he was 10 months old.
The police found no drugs in the apartment. But the search produced something else: While rummaging through cupboards and drawers, officers found Starling’s cash in a bedroom dresser and pants pockets.
Starling, who owns a hot dog stand, had earned the money through legal labor and was saving to buy a food truck. She never consented to her then-boyfriend’s alleged activities, and the police did not accuse her of wrongdoing. But they seized her money anyway.
Initially, Starling thought the setback would be temporary. “I hadn’t done anything wrong,” she told the Institute for Justice. “I wasn’t arrested for anything. There were no charges brought against me. So, I didn’t see a reason why I wouldn’t get my money back.”
This was her first mistaken assumption. Through a process called civil forfeiture, the government can take and keep cash, cars and other valuables without convicting anyone of a crime. The practice dates to medieval times, but was popularized and expanded in the United States as part of the “war on drugs” in the 1970s. Under modern rules, guilt or innocence can be irrelevant. The government pursued civil forfeiture against Starling’s cash even after a jury acquitted her then-boyfriend due to lack of evidence.
Property owners who face civil forfeiture must fund their own defenses, and Starling could not afford an attorney. So she represented herself. Local officers had seized her cash, so she thought her legal battle would occur in Monroe County under New York laws.
This was her second mistaken assumption. Through a program called equitable sharing, created in 1984, state and local agencies can outsource civil forfeiture litigation to U.S. attorneys. These prosecutors use federal laws that offer property owners fewer protections than New York and many other states.
The result is a massive loophole in state laws. If participating agencies don’t like civil forfeiture reforms where they live, they can partner with the federal government and bypass them. Once the process ends, federal agencies take a cut for themselves and return the rest — up to 80 percent — to their state and local accomplices.
The Rochester Police Department took this route with Starling’s money. By the time she figured out the jurisdiction, the clock had run out on her claim, and she lost her money by default without ever seeing a judge. Rather than accept the violation of her due process rights, she took her case to the 2nd U.S. Circuit Court of Appeals. Our public interest law firm, the Institute for Justice, represents her for free.
H.R. 1525, which Representatives Tim Walberg (R-Michigan) and Jamie Raskin (D-Maryland) reintroduced on March 9, would help end cases like this. “The lawless seizure and forfeiture of people’s private property by police officers is becoming standard operating procedure in many parts of the country,” Raskin said. “We want to restore the presumption of innocence, fair judicial process, and the opportunity to be heard.”
Among other reforms, the measure would abolish federal equitable sharing. State legislatures could do this on their own, and some have moved in this direction. Arizona, Maryland, Nebraska, New Mexico and Ohio prevent property transfers to the federal government for forfeiture unless seized assets are worth more than a threshold amount ranging from $25,000 to $100,000. (The intent is to keep the focus on major operations, rather than petty criminals.) New Mexico also bars state and local agencies from keeping equitable sharing proceeds for themselves, which reduces the perverse financial incentives.
These are steps in the right direction. But so far, no state has completely prohibited equitable sharing. The financial incentives to continue the program are too high. “Policing for Profit,” a national report from the Institute for Justice, shows equitable sharing payments topped $8.8 billion during the 20-year span from 2000 to 2019.
David B. Smith, a Virginia-based attorney who supports forfeiture reform, says law enforcement agencies have grown dependent on the revenue. “Once police got used to it, they became addicted to it and had to have it,” he told St. Louis Public Radio in Missouri, where the loophole is perhaps most noticeable.
The Missouri state Constitution directs all forfeiture proceeds to schools, but police agencies prefer to keep the money for themselves. So they use equitable sharing to circumvent the requirement. Missouri police agencies provided just $202,000 to schools in 2018, while keeping more than $9 million for themselves through equitable sharing.
State law requires Missouri law enforcement agencies to file annual reports, detailing what they do with the money. But most agencies ignore the rule. A report from the state auditor finds that as many as 661 Missouri agencies participated in equitable sharing in 2022, but only 118 agencies filed reports. The rest operated without transparency.
Susan Goldammer, an attorney for the Missouri School Board Association, says children ultimately suffer. “We still have school districts that don’t have air conditioning, or have concerns about asbestos,” she told a local television news station.
Similar workarounds occur in North Carolina. The state bans civil forfeiture entirely, but police agencies use equitable sharing to circumvent the restriction. From 2000 to 2019 they collected more than $293 million for themselves. Presumably the money goes toward police equipment and training, but no one knows for sure. North Carolina does not track seized property or publish statewide forfeiture reports.
Federal reform is necessary to end abuses like these. Federal equitable sharing must be abolished. People like Starling deserve better.
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