Interest on our national debt is set to exceed defense spending this year, making it the third-largest category of government spending after Social Security and Medicare/Medicaid. It is no secret that the more taxpayer dollars are allocated towards paying off debt, the fewer are available to run the quotidian operations of government.

As the deficit continues to eat up discretionary spending, Congress has allowed key agencies to supplement appropriations through other means. This practice obscures the true impact of our national debt and, in the case of federal law enforcement, leads to real encroachments on American liberty. 

Agencies typically receive resources annually via the appropriations process. This arrangement ensures that Congress maintains the power of the purse, a vital check on the increasingly expansive power of agencies. Annual appropriations also increase an agency’s democratic accountability and transparency, creating space to curtail agency power when it departs from Congress’s agenda — that is, until Congress selectively abandoned this process and handed the checkbook over to some agencies directly. 

Since the War on Drugs in the 1980s, Congress has allowed federal law enforcement agencies to supplement their appropriated budget using proceeds from civil forfeiture, generating law enforcement unaccountability and financially incentivizing property seizure. 

In theory, this sounds like a nifty budget solution, but in practice, it’s backdoor spending that removes incentives for law enforcement to target violent crime. Congress needs to face the deficit and stop allowing agencies to generate their own revenue — starting with this strikingly unjust example. 

Contrary to criminal forfeiture, where the state seizes personal property as part of the owner’s criminal sentence, civil forfeiture allows law enforcement to seize property that they suspect was used in the commission of a crime — without a criminal charge or conviction. Seized property runs the gamut from drugs, and arms, to vehicles, phones, homes, businesses, jewelry and, most commonly, cash. In 2018, law enforcement seized over $3 billion ($500 million under state law and $2.5 billion under federal law). 

Because the value of the seized property is often less than the price of hiring an attorney, only 22 percent of victims fight to have their property returned. So where does all this money go?

Usually, it goes right back to the agency that seized it. Proceeds from federal forfeiture go into the Asset Forfeiture Fund, which the attorney general is congressionally authorized to use as an ATM: withdrawing money to pay for sustaining the forfeiture program; outfitting cars, boats, and planes; building prisons; paying the salaries of state and local law enforcement who aid federal agents in forfeiture; buying drugs and arms to be used as evidence in prosecutions; and rewarding informants. 

The Department of Justice’s 2024 budget predicts that it will generate $1.363 billion in revenue from forfeiture, which comes not from Congress, but from the pockets of Americans who haven’t been charged with a crime. This revenue stream liberates federal law enforcement agencies from their dependence on government appropriations. If Congress denies their request for more funding, they have civil forfeiture funding as a fallback. 

Several federal agencies generate revenue to fund their activities — the Postal Service self-funds through the sale of stamps and services, for example — but Americans voluntarily opt-in to paying the Post Office. If you would like to mail a letter, you must first buy a stamp. Federal law enforcement, on the other hand, generates its revenue stream from the property of unsuspecting Americans who often never get their day in court. 

Civil forfeiture is already un-American. Allowing Congress to abdicate its financial responsibilities by letting agencies profit from it isn’t much better. The result has been an inordinate increase in forfeiture cases and an incentive structure that deters law enforcement from addressing less lucrative crimes.

Investigating violent crime doesn’t often lead to forfeiture, nor does searching for missing persons. Thus, law enforcement is rewarded for spending more time and effort on drug crimes and low-level offenses that lead to forfeitable property. 

This is all the more concerning in light of violent crime trends: Washington, D.C., experienced a 35 percent increase in homicides in 2023. The fact that police have higher incentives to pursue property crime over violent crimes bodes ill for the safety of our cities. 

Agencies should not be allowed to keep seized assets, let alone the profits from auctioning them off, as this practice leads to a lack of transparency and accountability. Instead, the profits should be deposited into the Treasury where Congress can keep a firm hold on the purse strings.

Legislatures at every level of American government use budgetary control to hold law enforcement accountable. Without budgetary oversight, agencies can decide the size, scope, and direction of their activities. Do we want federal law enforcement agencies to have a side hustle that is invisible to Congress and citizens alike? 

The bottom line is, money matters. We need to lower the deficit, not obscure its effects by allowing agencies to fund their operations independently through backdoor practices. Congress must reclaim responsibility for the budget, particularly when the second-order effects of their abdication result in the infringement of our civil liberties. 

Jill Jacobson is a law student at Boston College Law School, a visiting fellow at Independent Women’s Law Center (iwlc.org), and a contributor at Young Voices.