Unfortunately, while the DUE PROCESS Act contains many of the procedural reforms that The Heritage Foundation and a broad coalition of organizations have called for in our recent Meese Center report, “Arresting Your Property,” it does not tackle two of the most perverse aspects of forfeiture law: the financial incentives that underlie modern civil forfeiture practices and the profit-sharing programs known as “equitable sharing.”

Under federal law, 100 percent of the proceeds of successful forfeitures are retained by the federal law enforcement organization that executed the seizure. This money is available to be spent by these agencies without congressional oversight, meaning they can—and do—self-finance. This profiteering incentive is extended to state and local agencies through programs administered by the Justice and Treasury departments known as “equitable sharing,” which allow property seized at the state and local level to be transferred to federal authorities for forfeiture under federal law. The feds then return up to 80 percent of the resulting revenues to the originating agency.

Thus, federal law provides every law enforcement agency in the country with a direct financial incentive to seize cash and property—sometimes at the expense of investigating, arresting, and prosecuting actual criminals—and simultaneously encourages state and local agencies to circumvent state laws that are more protective of property rights or restrictive as to how forfeiture proceeds may be spent than the federal standard.

The simple fact is that civil forfeiture is already blatantly illegal, as per the plain words in the fifth amendment to the Constitution:

No person . . .[shall] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.