DOJ’s Civil Asset Forfeiture Expansion Faces Bi-Partisan Roadblock

September 14, 2017

Civil asset forfeiture is a practice used by law enforcement agencies to seize assets or property from any person suspected of a crime. The seizure does not require a criminal charge, or conviction, or an order of any kind. The practice has been in the news lately as many states have begun to consider reigning in use of the practice. Several states have either heightened the standards of proof required for the government to seize property or implemented restrictions on the practice, such as: California, Connecticut, Michigan, Maryland, Nebraska, Montana, and Minnesota. 14 states require criminal convictions before the seizure of assets including New Mexico.

On the Federal level, in an effort to combat illegal drugs, Congress passed the Anti-Drug Abuse Act of 1986 which allowed the Federal government to seize property and assets from individuals suspected of criminal activity. Civil Asset Forfeiture was codified in 18 U.S. 981 et seq. These statutes allowed the Attorney General, the Secretary of the Treasury or the Postal Service to create a working partnership with individual State law enforcement agencies to carry out the civil asset forfeitures in turn for equitable sharing.

This led to the Department of Justice’s (DOJ) Equitable Sharing program where the DOJ partners with local law enforcement agencies to share in the assets collected. The local law enforcement agency that seized the assets would receive upwards of 80% of the proceeds if it seizes property for the Federal government. In the last decade, Federal forfeiture initiatives like the Equitable Sharing program brought in nearly $28 billion according to a Department of Justice inspector general’s report. This program allowed local law enforcement agencies to bypass any State specific statutory framework.

Some have argued that the Equitable Sharing program creates  an inappropriate incentive for state and local governments which allowed these law enforcement agencies to bypass state law limitations on asset forfeiture and utilize Federal law that are more lenient and less stringent to seize more assets and sharing directly in the proceeds of the assets. States typically require proceeds to go to the state general fund where as the DOJ Equitable Sharing program let the individual law enforcement agent seizing property keep the proceeds thereby skirting State oversight.

In 2015, then Attorney General Eric Holder restricted the DOJ’s Equitable Sharing program effectively bringing an end to the program. He modified the program’s rules to prevent local authorities from seizing property without warrants or criminal charges, but left in place certain exceptions. In addition, he restricted the ability of the DOJ to take possession of seized property by local authorities which would reduce sharing of proceeds. Moreover, he required any seized property to be justified with probable cause in order for the Federal government to take possession. In addition, the DOJ announced it was suspending the program due to budgetary reasons.  These reforms and deferments effectively brought an end to the Equitable Sharing program for short period of time. The move was supported by members of both parties in Congress who were calling on the DOJ to end the Equitable Sharing Program for some time.

However, in 2016 law enforcement agencies and some lawmakers pushed back against the ending of the Equitable Sharing Program and asked the DOJ to restore it. Under Attorney General Loretta Lynch the DOJ restarted the program but still kept in place reforms implemented under Attorney General Holder that prevented local law enforcement officials to use Federal laws to seize assets.

Following the appointment of Jeff Sessions, the DOJ issued new policy and guidelines that expanded the Civil Asset Forfeiture program by eliminating reforms set in place under Eric Holder’s DOJ. “The new policy revives so-called federally adopted forfeitures, which empower state and local law enforcement to use federal law to bypass more restrictive state laws to seize the proceeds from crimes and to share the profits with federal authorities. That money may then be repurposed . . . for training or equipment, such as bulletproof vests or bomb-disposal equipment.” Attorney General Jeff Sessions did announce new safeguards like requiring additional details from local authorities to justify probable cause for any assets seized, mandatory training, and required a Federal prosecutor’s approval for certain amounts of seizures.

But it seems the DOJ’s attempt to revive the Equitable Sharing Program to its former status may face Congressional roadblocks. In a rare bipartisan effort, both the Senate and the House of Representatives approved an amendment to the Make America Secure and Prosperous Appropriations Act that prevents Attorney General Jeff Session’s from expanding the Equitable Sharing program by undoing the reforms implemented under Eric Holder. Both the House and Senate passed the amendment by unanimous voice vote that blocks the DOJ’s implementation of the new directives by prohibiting funds to the forfeiture program.

The amendment is attached to an important funding bill that seems likely to pass. Recent polling suggests 84% of Americans oppose the practice of civil asset forfeiture, both the Democratic and Republican parties oppose it, and many States have taken steps to curtail the practice. By passing this amendment, it seems Congress is echoing the national sentiment. While the amendment will not end the practice, it does stop the expansion of civil asset forfeiture as long as the appropriations bill becomes law.

Image source: Reuters/Rick Wilking

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