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Attorney General Changes Civil Asset Forfeiture Policy: A Step in the Right Direction

On Behalf of | Feb 4, 2015 | Criminal Law

Asset forfeiture is the government seizure of property connected to unlawful activity — a practice that plays a central role in the federal government’s “War on Drugs.” Recently, this practice has been under scrutiny from the U.S. Attorney General Eric Holder and civil liberty groups. The criticisms focus on the fact that law enforcement can seize possessions of people – such as cars and money – without an indictment or evidence that a crime has even occurred.

The Basics of Asset Forfeiture

Most forfeiture takes place under federal law in connection with the trafficking of illegal drugs; however, many states have their own asset forfeiture programs with the authority to seize property established by statute. There is also considerable collaboration between federal officials and local police, known as “equitable sharing.” Numerous federal statutes provide that local police agencies can team up with federal law enforcement officials in two different ways, either by “adoption” or by “joint investigation”. “Adoption” occurs when local police agencies effectively hand a case over to federal officials so that the case gets kicked up to federal court, where it will be governed by federal forfeiture laws. “Joint investigation” is when the federal agencies work alongside the state or local agencies in the investigation process.

Asset forfeiture has two basic forms – criminal and civil. Criminal forfeiture operates as a punishment for crime. Once a person is found guilty, the court may enter an order of forfeiture against that person’s property. Defendants are afforded the safeguards of due process, including proper notice that the property is at risk of forfeiture and an opportunity to challenge the forfeiture. Because criminal forfeitures are afforded the procedural rights of the Constitution, they have not been as controversial as civil asset forfeiture.

One the other hand, in a civil asset forfeiture case, the property is treated as the defendant in the case. Therefore, the case proceeds against the “thing” involved in the alleged illegal activity, as specified by statute. As contrasted to criminal forfeiture, civil forfeiture does not require a conviction or even an official charge against the owner. Lawyers view civil asset forfeiture as a clear violation of due process, whereby the punishment to the owner is served first when property is seized through the execution of a warrant, and the proof of the property’s innocence comes second in a civil hearing. Still, the owner being innocent does not mean they will get their property returned, as the Supreme Court has held in Bennis v. Michigan that the “innocent owner” defense is not constitutionally required.

Attorney General Eric Holder is Setting Changes in Motion to Asset Forfeiture Law

On January 16, 2015, Attorney General Eric Holder announced an overhaul to the federal civil asset forfeiture program. Holder’s new policy prohibits “adoptions” of state civil asset forfeiture cases by federal agencies unless the property includes firearms, ammunitions, explosives, child pornography, or any other items that threaten public safety. While police can continue to make seizures under their own state laws, this new policy will prevent them from using “adoption,” which can often be an easier process than state procedures due to less restrictive federal forfeiture laws compared to certain state forfeiture laws. The new policy does not affect asset seizures made under joint federal and state operations — “joint investigation” — prompting some advocates to caution that more reform is still needed.

This change in policy comes at a time where scrutiny of law enforcement is increasing in the United States. A Washington Post investigation published in September found that police have made cash seizures worth almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001. With local police claiming up to 80 percent of the proceeds and the federal agencies keeping the rest, civil asset forfeiture has been criticized for creating ethical dilemmas for police officers, incentivizing a “police for profit” mentality causing unnecessary stops and seizures to help fund their own departments. This new policy change is a step in the right direction and has seen bipartisan support in Washington; however, there are still numerous loopholes that need reform to restore fairness and equity in the process of asset forfeiture.