DOJ Circumvents State Asset Forfeiture Restrictions

DOJ Circumvents State Asset Forfeiture Restrictions June 12, 2019

President Obama adopted a policy at the DOJ to make it harder to seize cash or property unless the owner is actually convicted of the underlying crime, but Trump and Jeff Sessions quickly rescinded that policy after taking office. Now they have something called “adoption” that splits the money from those seizures between the feds and local law enforcement so circumvent a number of new state laws that have made it much harder to do so. My friend Radley Balko has the details:

In response to criticism that civil forfeiture creates perverse incentives for law enforcement and/or that it’s simply unjust, some states have passed laws putting restrictions on the policy. Some of these laws require that any proceeds from civil forfeiture cases go to a general revenue fund, or to some unrelated area such as a school fund. Others have raised the burden of proof in forfeiture cases and given more protections to property owners. More recently, several states have effectively banned civil forfeiture altogether, allowing forfeitures only in cases where prosecutors can obtain a criminal conviction.

The federal government has responded to these laws with the policy called equitable sharing. Under the policy, any police investigation involving federal resources is governed by federal law, not the more restrictive state laws. In some instances, such as joint operations and federal-local task forces, federal involvement in the case is significant. But within the equitable sharing cases, there’s a subclass of cases called “adoptions.” In these cases, the local police agency does almost all of the work. After the seizure, they’ll simply call up the field office of the Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, or other federal agency, and ask the feds to “adopt” the case. The operation is now governed by federal law. The federal agency takes possession of the seized property, then returns up to 80 percent of it to the local police department.

Adoption is clearly an attempt to subvert the will of state legislatures. A 2018 study found that police agencies in states with significant restraints on civil forfeiture were twice as likely to use adoption as states without such restraints. The Obama administration put a halt to the adoption policy in 2015, but then-Attorney General Jeff Sessions reinstated it in 2017.

Gee, whatever happened to “state’s rights” and their constitutional control over most police matters that Republicans love to talk about whenever it suits their purposes? Here we have the federal government actively undermining state laws that comply with the Constitution, which they are also actively undermining. In most — not just a few, or many — cases where property is seized on the grounds that it was either used in the commission of a crime or gained through the proceeds of crime, the owners aren’t even charged with the crime, much less convicted.

Radley is write when he says that when you describe this reality to people who aren’t familiar with it, they usually think you’re making it up, or at least exaggerating. It’s just too blatantly unjust and unconstitutional. Surely the courts wouldn’t allow that, would they? They have, repeatedly upholding the practice. There is precious little justice in our criminal justice system.

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