More Details on Holder’s New Asset Forfeiture Policy

My friend Radley Balko, who has done as much as anyone in the country to draw attention to the way civil asset forfeitures distort justice and shred the 4th Amendment, has more details on the order Attorney General Eric Holder issued limiting forfeiture under the Equitable Sharing program. One big concern is this loophole:

I also noted Friday that there are some loopholes in the new policy. One grants an exception to joint task forces, in which state and/or local police officials were together with a federal agency on an investigation. The language isn’t clear, but if the exception requires active involvement of federal law enforcement personnel, it’s not quite as big a loophole. But if the exception applies to the hundreds of federally funded anti-drug task forces across the country, it’s a much bigger deal. In an interview with Reason’s Jacob Sullum, Eapen Thampy, head of the advocacy group Americans for Forfeiture Reform, fears it may be the latter.

As virtually every drug task force I know of has a federal liaison on call, this means business as usual by local law enforcement using civil asset forfeiture through the Equitable Sharing Program to enforce the Controlled Substances Act and other federal statutes. In other words, the exception swallows the rule.

If that’s the case, if seizures under the Equitable Sharing Program can still be done by local police task forces if they have just a federal liaison, the new policy is little more than symbolic and will have little effect in the real world. There’s also the problem of how easily even this policy could be changed:

The fundamental unfairness of civil asset forfeiture is its basis on the legal fiction that a piece of property can be guilty of a crime. Therefore, forfeiture proceedings are civil, not criminal. This means you can lose your property despite never being convicted of a crime. In fact, in most civil forfeiture cases, the owner of the property is never even charged. Holder’s trying to trim the abuses, but law enforcement agencies at every level are too dependent on the lucre to cut out the process completely. Since the announcement, a few readers have asked on social media what would need to be done to eliminate the practice. It’s pretty simple: Congress could pass a law to tomorrow to require a criminal conviction before the government can keep seized assets. That would end civil forfeiture at the federal level. Any state legislature could do the same thing to end it within a particular state.

There’s also a lesson here about how difficult it can be to undo bad laws. These forfeiture laws were mostly passed at the height of 1980s drug-war panic, usually with little debate and by overwhelming majorities. Although most people are aghast when they hear how civil forfeiture work in practice, it has taken decades of persistent court challenges from groups like IJ and the ACLU, activism from advocacy groups, investigative reporting from media organizations and victims coming forward with their stories to get even modest reforms. I think Holder’s new policy is important, but it does contain some potentially large loopholes, and it could be undone by the next attorney general or the next administration.

What is even more appalling to me is that the courts have rubber stamped asset forfeiture. Frankly, I expect legislatures to pander to stupid voters with horrible policies like this. Federal judges, on the other hand, have no need to engage in such pandering. Their job is to ensure justice and compliance with the Constitution and it is absolutely baffling to me that they have allowed civil asset forfeiture to go on. Short of putting cameras in everyone’s homes, it’s difficult to imagine a public policy more flagrantly in violation of the 4th Amendment.

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  • Modusoperandi

    The fundamental unfairness of civil asset forfeiture is its basis on the legal fiction that a piece of property can be guilty of a crime.

    To be fair, they do look awfully guilty at the trials they don’t get.

  • abb3w

    Civil actions In rem against property are roughly as old as the Constitution, if one of the weirdest parts of law from the standpoint of non-lawyers. Civil asset forfeiture is an application of that bit of lawyerly weirdness. That the courts have done so little about it would seem to be something likely traceable to the Reagan legacy on the Federal Judiciary… but that might just be my prejudices.

  • tsig

    Forfeiture- where the cops also get to be the robbers.

  • briandavis

    Lets start a rumor that Obama intends to start using civil forfeiture to take the property of Christians. We can then let tea party types lead the charge to reform forfeiture laws.