The Holder Forfeiture Policy: Worse Than We Thought

The Holder Forfeiture Policy: Worse Than We Thought January 22, 2015

I lauded the new policy announced by Attorney General Eric Holder on civil asset forfeiture as a step in the right direction, but not nearly enough to fix the problem (to be fair, it would take legislation to do that). But the more it’s examined, the smaller that step in the right direction becomes. Jacob Sullum runs the numbers:

Holder’s order applies only to “adoption,” which happens when a state or local agency seizes property on its own and then asks the Justice Department to pursue forfeiture under federal law. “Over the last six years,” the DOJ says in the press release announcing Holder’s new policy, “adoptions accounted for roughly three percent of the value of forfeitures in the Department of Justice Asset Forfeiture Program.” By comparison, the program’s reports to Congress indicate that “equitable sharing” payments to state and local agencies accounted for about 22 percent of total deposits during those six years. That means adoptions, which the DOJ says represented about 3 percent of deposits, accounted for less than 14 percent of equitable sharing. In other words, something like 86 percent of the loot that state and local law enforcement agencies receive through federal forfeitures will be unaffected by Holder’s new policy.

That is not the impression left by The Washington Post, which broke this story on Friday. “Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without warrants or criminal charges,” the Post reported, saying the new policy “would eliminate virtually all cash and vehicle seizures made by local and state police from the [equitable sharing] program.” The Post did note, deep in the story, that Holder said equitable sharing would continue in cases “where local and federal authorities are collaborating.” But it said “most of the money and property taken under Equitable Sharing since 2008…was not seized in collaboration with federal authorities.”

That contradicts the Justice Department’s numbers, which indicate that the vast majority of equitable sharing comes not from adoption but from “collaboration” of some sort, even if it is limited to federal support for multijurisdictional task forces. A 2012 report from the Government Accountability Office reinforces that point, noting that “adoptions made up about 17 percent of all equitable sharing payments” in 2010.

If Holder (and Obama, presumably) really think civil asset forfeiture is a problem — and it is — I’d like to see them push for legislation that does away with it entirely unless there is a conviction in the case. That would fix the problem. And this is one of the few issues where they could actually get bipartisan support. There are many voices on the right who are strongly opposed to our asset forfeiture laws, so it would actually have a chance of passing even with Republican control of both houses of Congress.

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