26th Jan 2015
On January 16, 2015, Attorney General Eric Holder issued an order, “Prohibition on Certain Federal Adoptions of Seizures by State and Local Law Enforcement Agencies.” (The accompanying Department of Justice (DOJ) press release explains the term “adoption”: “A federally adopted forfeiture
— or ‘adoption’ for short — occurs when a state or local law enforcement agency seizes property pursuant to state law and requests that a federal agency take the seized asset and forfeit it under federal law.”) This order limits state and local law enforcement in their use of a federal program called “Equitable Sharing” to seize cash and property and keep as much as 80% of the seizures. (The other 20% had gone to federal agencies.)
The Washington Post reported that under the “Equitable Sharing” program, “local and state police routinely pulled over drivers for minor traffic infractions, pressed them to agree to warrantless searches and seized large amounts of cash without evidence of wrongdoing. The law allows such seizures and forces the owners to prove their property was legally acquired in order to get it back.” About two-fifths (42%) of the nation’s police departments participated in the “Equitable Sharing” program, according to the Post. Congressional leaders and other advocates for justice had expressed concerns that, by using this program, state and local police might get around state restrictions on such seizures, give federal bureaucracy yet more work to do (in processing these seized assets), and give state and local police too much incentive to rely on asset forfeiture to meet their budgetary needs.
Assuming this policy is followed, this will help curb the government’s abuse of citizens because local and state authorities will not be able to use federal procedures to seize cash and property in routine traffic stops on flimsy suspicions.
Although this announcement begins with the word “Prohibition,” the Attorney General did leave some broad loopholes. The DOJ announcement says, “Attorney General Prohibits … Except Where Needed to Protect Public Safety.” Law enforcement agents usually find it easy to argue that their actions protect public safety. Attorney General Holder’s order gives a couple of specific exceptions for “(1) seizures by state and local authorities working together with federal authorities in a joint task force; (2) seizures by state and local authorities that are the result of joint federal-state investigations or that are coordinated with federal authorities as part of ongoing federal investigations …” This prevents state and local law enforcement on their own from seizing assets and then turning them over to federal agents, but how easy is it to turn an interaction into a “joint investigation”? If the answer is, “Just a phone call from the local authorities to federal authorities,” then this is not much protection.
It may prove very difficult to implement this policy change because it is always difficult to change government. Government, on all levels, gets accustomed to having a certain level of funds coming in to pay the staff it is used to having. The same Washington Post article reports, “The policy will touch police and local budgets in every state.” We also do not know what policy on asset forfeiture will be pursued by the next Attorney General or the next presidential administration.
UPDATE: On February 10, 2015, the Institute for Justice released an analysis of DOJ data from 2008-2013 which showed that the policy Attorney General Holder announced would only have affected a quarter of the asset forfeiture cases in that time period. Adoptions accounted for only a small percentage of the value of all assets seized in these cases.
Given these reservations and data analysis, we think this is a step in the right direction, but a very small step.
by Chad Van Cleave