A federal program allowing local law enforcement to receive shares of assets seized from citizens without criminal charges or search warrants has ended, U.S. Attorney General Eric Holder announced in late January.
Since 2008, the U.S. Justice Department’s “Equitable Sharing” civil asset forfeiture program seized more than $3 billion in citizens’ cash and property as part of criminal investigations. The majority of these seized assets were redistributed to participating local and state law enforcement agencies.
Despite the end of the Equitable Sharing program, significant reforms are still required to ensure citizens’ fair treatment by law enforcement officials, said Robert Frommer, an attorney with the Institute for Justice.
“The announcement by Attorney General Holder is an encouraging step forward with regard to reforming civil forfeiture,” Frommer said. “What the AG said was that the Department of Justice and the Treasury Department are going to stop what’s known as ‘adoption,’ where they take state and local forfeiture cases and prosecute them under a federal law.”
“There were two problems with the federal adoption program,” Frommer explained. “One is that it eliminated many of the procedural protections that forfeiture victims received under state law. Two, it made an end run around many states who [had] decided that the profit from forfeiture should not go to the police but to the general fund. Federal adoptions violated that decision by state officials, by giving up 80 percent of whatever was forfeited, directly to law enforcement.”
Despite the policy change, Frommer says much more needs to be done to reform civil asset forfeiture, citing loopholes in the new policy, including one allowing adoption to continue for joint task forces.
Big, ‘Nebulous’ Loopholes
“Attorney General Holder’s order exempted ‘joint task forces,’ combinations of local and federal officials. Those task forces are the groups that have been involved in highway interdictions that have been at the forefront of the news recently,” he said.
Another loophole allows adoption to continue when it would promote public safety.
“The policy that they laid out has a public safety exemption, so that the federal government can still take on forfeiture cases referred to them by state and local officials if they deem it to be for public safety purposes. That’s rather nebulous,” Frommer added.
Additional Reforms Suggested
Frommer suggested two ideas for additional reforms.
“One idea for reform is replacing civil forfeiture with criminal forfeiture,” he said. “‘Criminal forfeiture’ says that if you’ve been convicted in a court of law, found guilty beyond a reasonable doubt, that [the government] can take the property that’s associated with the criminal violation. That’s perfectly fine. The problem with civil forfeiture is that it is a much lower standard, ‘preponderance of the evidence,’ which really means ‘more likely than not.'”
“That’s one huge problem with civil forfeiture,” Frommer added.
“The other idea is to eliminate the profit incentive. Giving police and prosecutors a direct financial incentive in the property that they seize and forfeit really allows for nothing more than policing for profit,” Frommer said. “By removing the profit incentive, we can ensure that law enforcement works toward the impartial pursuit of justice, rather than the pursuit of profits.”
Jeff Reynolds ([email protected]) writes from Portland, Oregon.