January 16, 2015
Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.
Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing.
The program has enabled local and state police to make seizures and then have them “adopted” by federal agencies, which share in the proceeds. The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.
“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said in a statement.
Holder’s decision allows some limited exceptions, including illegal firearms, ammunition, explosives and property associated with child pornography, a small fraction of the total. This would eliminate virtually all cash and vehicle seizures made by local and state police from the program.
While police can continue to make seizures under their own state laws, the federal program was easy to use and required most of the proceeds from the seizures to go to local and state police departments. Many states require seized proceeds to go into the general fund.
A Justice official, who spoke on the condition of anonymity in order to discuss the attorney general’s motivation, said Holder “also believes that the new policy will eliminate any possibility that the adoption process might unintentionally incentivize unnecessary stops and seizures.”
Holder’s decision follows a Washington Post investigation published in September that 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.
The Post found that 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.
Police spent the seizure proceeds with little oversight, in some cases buying luxury cars, high-powered weapons and military-grade gear such as armored cars, according to an analysis of Justice Department data obtained through Freedom of Information Act requests.
News of Holder’s decision stunned advocates who have for a long time unsuccessfully sought to reverse civil asset forfeiture laws, arguing that they undermine core American values, such as property rights and due process.
“It’s high time we put an end to this damaging practice,” said David Harris, a constitutional law scholar at the University of Pittsburgh. “It has been a civil-liberties debacle and a stain on American criminal justice.”
Holder’s action comes as members of both parties in Congress are working together to craft legislation to overhaul civil asset forfeiture. Last Friday, Sens. Charles E. Grassley (R-Iowa) and Mike Lee (R-Utah), along with Reps. F. James Sensenbrenner Jr. (R-Wis.) and John Conyers Jr. (D-Mich.), signed a letter calling on Holder to end Equitable Sharing.
Grassley praised Holder’s decision on Friday.
“We’re going to have a fairer justice system because of it,” Grassley said. “The rule of law ought to protect innocent people, and civil asset forfeiture hurt a lot of people.”
He said he planned to continue pressing for legislative reforms.
“I commend the department for this step and look forward to working with them on comprehensive forfeiture reform that protects Americans’ property rights,” Sensenbrenner said. “Equitable sharing has become a tool too often used to bypass state law. Forfeitures should be targeted and must have appropriate procedural protections.”
The new policy could become one of the more notable pieces of Holder’s legacy. Holder has already announced he is leaving the department, and it is clear that he is takings steps to burnish his place in history. On Thursday, he pushed in a speech for better tracking of police use-of-force incidents.
But Friday’s action is sure to engender its share of controversy.
The policy will touch policing and local budgets in every state. Since 2001, about 7,600 of the nation’s 18,000 police departments and task forces have participated in Equitable Sharing. For hundreds of police departments and sheriff’s offices, the seizure proceeds accounted for 20 percent or more of their annual budgets in recent years.
The action comes at a time when police are already angry about remarks that Holder and President Obama made after the controversial police killings of unarmed black men in Ferguson, Mo., and New York City. Some have accused them of being “anti-cop.”
“It seems like a continual barrage against police,” said John W. Thompson, interim executive director of the National Sheriffs’ Association. “I’m not saying there’s no wrongdoing, but there is wrongdoing in everything.”
Critics of the decision say that depriving departments of the proceeds from civil asset forfeitures will hurt legitimate efforts to fight crime, drug smuggling and terrorism.
Bill Johnson, executive director of the National Association of Police Organizations, said, “There is some grave concern about the possible loss of significant funding while local police and state police are being asked to do more and more each year.”
Over the past decade, thousands of people have had to fight the government to get their cash and property back, often hiring lawyers and spending more than a year in the process. Many of them were people of color and immigrants swept up in police dragnets on the nation’s highways aimed at stopping drug dealers, money launderers and terrorists.
That includes people such as Mandrel Stuart, who was stopped in 2012 by Fairfax County police, detained without charges, handcuffed and stripped of $17,550 in cash that was to be used for equipment and supplies for his barbecue restaurant in Staunton, Va. He eventually hired a lawyer, and a jury gave him his money back in 2013. But he lost his restaurant while fighting the government, because he had no working capital.
“A lot people won’t be harassed the way they are harassing them now,” Stuart said Friday after he heard about Holder’s action. “It’s some justice at last on our side.”
Civil asset forfeiture is one of the most powerful — and unusual — law enforcement tools. Police do not need evidence of a crime to use it, because it is a civil action against an object, such as currency or a car, rather than a person.
As a consequence, protections common in criminal law do not apply. In fact, the burden is on owners who want to recover their cash or property to prove it is not tied to crime.
Forfeiture has its basis in British admiralty law, but it became a part of the fight against drugs in the United States beginning in 1970, when Congress allowed police to seize aircraft, boats and other property used to transport narcotics or bought by drug lords with ill-gotten gains.
In the 1980s, the law was expanded to include cash. About the same time, the Justice Department created its Asset Forfeiture Program and began allowing federal agencies to adopt seizures made by state and local authorities. Those changes led to a massive increase in money deposited into the federal forfeitures fund as seizures by local and state police surged. Allegations of police abuses also increased.
Searing reports by the Orlando Sentinel and other newspapers about abuses spurred Congress to pass the Civil Asset Reform Act in 2000. But a key change — ending the sharing of seizure proceeds between local police and federal agencies — was cut from the bill after fierce opposition from police and prosecutors. Some lawmakers called the sharing of money a “perverse incentive” for overly aggressive police tactics.
After 9/11, the use of the asset forfeiture law and the Equitable Sharing program rose to new heights as federal authorities called on local, county and state police to help keep watch on the nation’s highways, not only for drug smugglers but also for terrorists.
The Departments of Justice and Homeland Security paid private firms millions to train local and state officers in the techniques of an aggressive brand of policing known as “highway interdiction.” That training, developed by the firms, included methods for ferreting out suspicious drivers and coaxing them into granting warrantless searches of vehicles, according to internal company training documents obtained by The Post. The documents emphasized the importance of targeting cash.
Departments that had once focused on seizing drugs changed their focus to money in recent years, some officers said. “Over a period of a single decade, the culture was now totally changed,” said Shawn Pardazi, a Mississippi police detective who teaches highway interdiction.
The federal government also encouraged police to collect and share intelligence about drivers, even those who had done nothing wrong. The training firm Desert Snow started a private intelligence system called Black Asphalt that enabled police to share tips about drivers across state lines and funnel raw reports about drivers to federal authorities, including those at the Drug Enforcement Administration and U.S. Immigration and Customs Enforcement.
Civil asset forfeiture has become one of the few public policy and social issues that united activists and lawmakers across the political spectrum, some of whom dubbed the system “policing for profit.”
After The Post series, John Yoder and Brad Cates, two directors of the Justice Department’s asset forfeiture office under President Ronald Reagan, said the program should end. In an opinion piece, they said the program began with good intentions to fight the “profit motive” that fueled drug cartels and other criminals. “Over time, however, the tactic has turned into an evil itself, with the corruption it engendered among government and law enforcement coming to clearly outweigh any benefits.”
The Institute for Justice and other libertarian-leaning groups teamed up with the American Civil Liberties Union and left-leaning groups to press for changes in the wake of the Post investigation.
“This is a profoundly important and path-breaking change in the ability of the government to take property of Americans,” said Scott Bullock, a senior attorney at the Institute for Justice, which produced a study about civil asset forfeiture five years ago called “Policing for Profit: The Abuse of Civil Asset Forfeiture.”
In recent months, Grassley, the new chairman of the Senate Judiciary Committee, and Sen. Patrick J. Leahy (Vt.), the panel’s ranking Democrat, joined the effort, along with Sensenbrenner and others.
“I am deeply troubled by the well-documented reports of innocent Americans swept up through the misuse of civil asset forfeiture laws,” Leahy said in a statement to The Post. “This program was designed to be a crime-fighting tool, not just a fundraising tool. I look forward to working with Senator Grassley to impose some much-needed oversight and accountability into this area.”
Holder said Equitable Sharing seizure adoptions will continue to be employed by local and federal authorities, but only in limited circumstances when public safety is at risk and where local and federal authorities are collaborating in cases clearly involving criminal activity.
The public safety exceptions include seizures of weapons and other dangerous items, and property related to child pornography, which have accounted for only a tenth of 1 percent of the total seizures since 2008, a Post analysis found.
Joint federal and local investigations accounted for just 9 percent of all seizures but 43 percent of the value of all seizures. Local and state seizures without federal participation amounted to 57 percent of the dollar value of the seized items under Equitable Sharing since 2008 — $3 billion out of $5.3 billon, according to Post research.
In announcing the new Justice Department policy Friday, Holder said there is also less need for the Equitable Sharing program. In the 1980s, when sharing policies took effect, few states gave police the authority to make civil seizures and forfeit the assets of criminals in the way that federal law allowed.
“Today, however, every state has either criminal or civil forfeiture laws, making the federal adoption process less necessary,” Holder’s statement said. “Indeed, adoptions currently constitute a very small slice of the federal asset forfeiture program. Over the last six years, adoptions accounted for roughly three percent of the value of forfeitures in the Department of Justice Asset Forfeiture Program.”
Some police departments have shown an apparent preference for federal law over state laws. Equitable Sharing required the seizure proceeds to go back to the departments, while state asset forfeiture programs can mandate that the money go into the state’s general fund.
The federal agencies that have historically adopted the seizures, such as the DEA and ICE, stand to lose a considerable amount from the change in policy. Federal agencies have taken in $800 million from the program in cash alone without warrants or arrests since 2001.
The Treasury Department is also changing its asset forfeiture program to follow the same guideline included in Holder’s order, the statement said.
Federal agencies make larger seizures of cash and property through avenues other than Equitable Sharing, typically in cases involving defendants ranging from drug cartel kingpins to Bernie Madoff, whose fraud case has resulted in more than $9 billion in forfeitures in recent years.
Those programs are not affected by the changes to Equitable Sharing, but Holder also said the new policy is the first step in a “comprehensive review” of civil forfeiture in general.
Justice Department officials noted that civil asset forfeiture has hurt criminals and their organizations. It also has enabled the government to refund money to crime victims — about $4 billion over the past 15 years.
“Asset forfeiture remains a critical law enforcement tool when used appropriately — providing unique means to go after criminal and even terrorist organizations,” Holder said. “This new policy will ensure that these authorities can continue to be used to take the profit out of crime and return assets to victims, while safeguarding civil liberties.”
View online, here.