Jessica Masulli Reyes

The News Journal

A secret stash of money – seized from citizens and then used to fund Delaware police agencies' wish lists – is lacking not only public review, but also state oversight that's required under the law.

A News Journal investigation in November found that state law shields police and prosecutors from having to tell taxpayers how they spend money from the state's Special Law Enforcement Assistance Fund, comprised of money and property seized from citizens suspected but not necessarily charged with a crime.

The results of a Freedom of Information Act request filed by The News Journal revealed that the fund is also operating under the radar of the auditor's office.

No police departments in the state are complying with a portion of the law that requires them to provide Delaware's auditor with a "detailed and complete accounting of the disbursement of all such funds from the prior fiscal year."

"It is deeply troubling that the independent state agency that was supposed to be keeping this seizing-and-spending in check hasn’t been doing so," said Ryan Tack-Hooper, an attorney with the American Civil Liberties Union of Delaware.

SLEAF, created in 1981 and expanded in 2013, is funded through the practice of civil forfeiture, in which the police can seize property or cash if they believe the items were used or intended for use in a criminal act. Court records show that police often seize drug proceeds or vehicles suspected of drug trafficking during traffic stops and home searches.

Those who challenge the seizure are required to file a petition in the civil division of Delaware's Superior Court and must prove to a judge that the money or property was not connected to illegal activity. Court records from last year show that from July to November over 50 people had filed petitions for return of property, seeking a total of $140,000 in cash and various items and vehicles.

Most, however, either do not challenge the seizure or end up negotiating a deal with a state prosecutor to get only a portion back, records show.

The SLEAF committee, made up of prosecutors and law enforcement representatives, has distributed over $5 million since 2012 to police agencies around the state through grants. While the exact distributions are kept secret, the fund is likely used for things like body cameras and stun guns or officer training courses and protection for crime victims.

The law regarding SLEAF is complex. It has two reporting requirements for police agencies that receive funds. One in which agencies must report to the Department of Justice by June 30 how they plan to spend SLEAF funds in that fiscal year, and another in which agencies must report by July 15 to the Department of Justice and Auditor of Accounts how they spent the SLEAF money from the prior fiscal year.

"The two requirements have different purposes, and the police are required to comply with both," Tack-Hooper said.

Some law enforcement agencies were unable to say why they weren't complying.

State Police Spokesman Sgt. Richard Bratz, pointing to the first portion of the law that requires police to send an accounting to the Department of Justice, said "as required by state law the Division of State Police report on an annual basis on SLEAF funds."

He referred additional questions about why State Police were not complying with the second part of the law regarding reporting to the Auditor of Accounts, to the Department of Justice.

The Department of Justice is going to start reminding police departments of the requirement that the detailed accounting report sent each year to their office should also be sent to the state auditor, said spokesman Carl Kanefsky.

The auditor's office will also look into the matter, said Kathleen Davies, the state's chief administrative auditor.

"At minimum, we would expect those required to file reports with our office should comply with the statute," she said in a statement.

Kanefsky added that the reports it collects from police are available if the auditor's office wants to inspect them at any point.

Some are still troubled by this lack of public and state oversight of SLEAF – and say that a complete overhaul of the state's civil forfeiture system is the only remedy. Delaware's laws have faced scrutiny because of the unique way the state exempts civil forfeiture proceeds and the SLEAF account from public disclosure.

One lawmaker has vowed to introduce legislation that would end civil forfeiture unless police secure a criminal conviction along with the seizure.

"The government should not be taking what is yours unless they can prove you did something wrong," said Sen. Colin Bonini, R-Dover, who is running for governor. "It is a perverse incentive structure where we will end up funding government activities based on seizures that haven't been proven."

Over $5 million since 2012

Critics of civil forfeiture say this has created an incentive for police to seize more money to pad their budgets outside the public eye, but advocates say the seized funds are an essential tool to cripple drug dealers and provide necessary funds to fight crime.

Delaware's civil forfeiture laws earned the state a grade of D-minus by the Institute for Justice, a libertarian public interest law firm in Washington, D.C. In other states, civil forfeiture funds are subject to public disclosure, but in Delaware, that is not the case.

"Delaware has an unusually secretive civil asset forfeiture system," Tack-Hooper said. "We don't get regular reports on how much people are seizing or what they are doing with the money. Instead, we have been asked to rely on the police to play by the rules and submit this information for auditing."

But the auditor's office confirmed to The News Journal in a Freedom of Information Act request that police agencies are not complying with the SLEAF statute.

​"Now that we’ve learned that they haven’t been doing so, it’s time to try a different approach," Tack-Hooper said. "The process should be opened to public scrutiny. Let’s bring some sunlight into the process."

John Flaherty, who lobbies for the Delaware Coalition for Open Government, agreed and is calling for an audit to determine exactly how the money is spent. He also wants to see the money go into the state's general fund, rather than into a separate pot for SLEAF.

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"Law enforcement has to lead by example," he said. "They need to be forthcoming and transparent about where this money goes. There is no harm in public accountability."

Kanefsky said the Department of Justice would be open to discussions about reforming the law to allow more public reporting for SLEAF.

"[It's] a discussion that would need to include the law enforcement agencies that are using these funds for valuable public safety purposes," Kanefsky said. "But any change to state law is ultimately an action that would have to be taken by the General Assembly."

A complete overhaul

Bonini is not only worried about the public disclosure, but wants to introduce legislation that would require a criminal conviction, except in rare circumstances, before assets can be seized.​

"Every single dollar in state government needs to be transparent," he said. "No one is saying we don't support law enforcement. That is not the point. The point is you shouldn't lose your stuff unless you did something wrong."

Last year, New Mexico became the first state to abolish civil forfeiture except when there is proof that a crime was committed – and even in that situation, all proceeds are not kept by the police, but are auctioned off for the state government.

Similarly, former Attorney General Eric H. Holder offered greater controls in 2014 on federal forfeiture laws, saying local and state police can no longer use federal laws to seize cash and property without warrants or criminal charges, unless federal authorities were directly involved in the case.

Legislation has been introduced in other states, but has not been successful.

Robert Everett Johnson, an attorney with the Institute for Justice, agreed that an overhaul, like that of New Mexico, is the only way to stop law enforcement from using civil forfeiture as a "piggy bank."

"Civil forfeiture thrives outside the light of public attention," he said. "Having better access to better information can only make the situation better, but even in places where we have auditing we still see abuses."

He called Delaware's public disclosure around SLEAF "deeply troubling."

"It's obviously troubling for law enforcement to not only have a slush fund, but [more so] to have a slush fund with no oversight."

Contact Jessica Masulli Reyes at (302) 324-2777, jmreyes@delawareonline.com or Twitter @JessicaMasulli.

What is the Special Law Enforcement Assistance Fund?

The Special Law Enforcement Assistance Fund is comprised of money seized by law enforcement from citizens who are suspected but not necessarily charged with a crime.

A committee of eight members, including prosecutors and law enforcement representatives, meets quarterly to review applications from police departments seeking those funds. They then make recommendations to the Attorney General for how the money should be spent.

It is unclear exactly how the money in SLEAF has been distributed since it is exempt from public disclosure laws. However, the money is likely used for police needs, such as bullet proof vests, protection for crime victims and additional training for officers.

If at any time the amount of funds in SLEAF exceeds $500,000, the excess must be deposited into the general fund.