Is the centuries-old practice of seizing property allegedly connected with a crime headed for a major shakeup in the U.S. this year?
Reform advocates on the left and right were encouraged by the temporary suspension last month of payments to local law enforcement agencies that participate in the federal asset forfeiture program.
But the reformers, who range from conservatives and libertarians to civil rights groups and human rights advocates, want the government to go a lot further in 2016 — towards the ultimate goal of abolishing the practice altogether.
Asset forfeiture has a long, tangled history in Western jurisprudence. Under the practice, governments can confiscate cash or property tied to criminal activity. It is deployed in both civil and criminal proceedings, but U.S. reformers point out that civil asset forfeiture can occur even without formal charges or conviction—and has led to abuses.
Abolition, however, would require an act of Congress, which most reformers concede is a long shot.
So, instead, a growing number of reformers are pushing for change in state legislatures all over the country.
The biggest obstacle to reforming civil asset forfeiture law has been the lack of public awareness. Headlines about the airplanes and bank accounts seized from drug dealers or organized crime bosses have eclipsed the concerns raised by the relatively few Americans who have been targets of civil asset forfeitures.
That's changed in the last couple of years.
“Last year was really an explosion of awareness,” said Eapen Thampy, executive director of Americans for Forfeiture Reform. “Maybe that will translate into a policy change.”
In 2014, prominent news outlets like the Washington Post and The New York Times dove into the issue. And HBO talk show host John Oliver gave the issue even greater prominence. The publicity led in 2015 to the formation of a bipartisan coalition of advocacy groups to push for change. The Senate Judiciary Committee held a hearing. The Institute for Justice, a libertarian public interest law firm, released a comprehensive report detailing how the practice has exploded in the last decade. A handful of state legislatures even considered changing policies — and a few actually did.
Last year also began and ended with some movement from the Department of Justice (DOJ) on the practice. In January, then-U.S. Attorney General Eric Holder restricted the list of assets that could be seized by federal agencies to firearms, ammunition, explosives, child pornography and materials affecting public safety. Last month, a DOJ memo notified local law enforcement agencies that the feds' “equitable sharing” program would be suspended “for the time being.”
However, nothing really changed. Law enforcement is still allowed to seize property without a charge or conviction in the name of public safety.
Reform groups hope to change that, state by state, by focusing their efforts on state legislatures.
Do Seizures Strengthen Public Safety?
Civil asset forfeiture—unlike criminal asset forfeiture, which requires a criminal conviction—begins with a lawsuit brought against an object, usually property— which is why you see many odd case names like “U.S. vs Various Electronic Equipment” or “U.S. v. One Elephant Ivory Crucifix.”
Police argue the practice helps keep the public safe because it separates bad guys from their profits.
“Asset forfeiture has the power to disrupt or dismantle criminal organizations that would continue to function if we only convicted and incarcerated specific individuals,” reads the DOJ's website.
But critics say it's become a way for cash-strapped law enforcement agencies to generate revenue to make up for stagnant or decreased budgets. And getting your stuff back can be a complicated mess of bureaucracy.
The November report by the Institute for Justice (IJ), self-described on its website as the “National Law Firm for Liberty,” documented what it said was a “meteoric, exponential increase” in forfeiture.
For example, IJ reported, in 1986, the DOJ's Assets Forfeiture Fund took in $93.7 million in revenue from federal forfeitures. By 2014, that number was $4.5 billion — a 4,667 percent increase. And in 14 states where IJ was able to get data — transparency is a big issue as well — the amount seized more than doubled from 2002 to 2014.
What Changed in December?
Until now, law enforcement departments were able to bring forfeiture cases to the feds rather than in their own state, where they would be forced to comply with local laws. Those laws vary considerably. Under the federal equitable sharing program, local departments were able to keep 80 percent of what they seized, with the remaining 20 percent going to the feds.
On December 21, M. Kendall Day, of the DOJ's Asset Forfeiture Program, told local law enforcement agencies in a memo that because Congress' budget included a $746 million reduction in funds for the program, the DOJ would suspend the program.
Law enforcement groups are strongly against the change and you can read many of their statements here.
Advocates have mixed feelings.
“For us this is a great reform move if it becomes permanent,” Dick Carpenter, IJ's Director of Strategic Research, told The Crime Report. “(But) if it's just a temporary move brought about by financial or fiscal concerns, then that's unfortunate,”
“All of this is just a temporary shuffling of the deck, moving around the pieces on a chess board, it doesn't change the game,” added Holly Harris, executive director of Fix Forfeiture, a coalition of left- and right-leaning groups that includes the American Civil Liberties Union, Americans for Tax Reform, Right on Crime, the Center for American Progress, FreedomWorks, Faith and Freedom Coalition and the Leadership Conference.
“We are not getting to the heart of the problem here,” Harris continued. “Studies have shown that 80 percent of seizures at the federal level are never connected to a criminal conviction, and this doesn't address that at all.”
Thampy of Americans for Forfeiture Reform said this change does nothing to stop aggressive forfeiture by federal agencies and that this change may result in even more aggressive seizing.
“The revenue incentive is just so powerful, so federal prosecutors will focus more on larger forfeitures,” he said.
Currently, according to the Institute for Justice, 34 states already have laws that allow departments to keep at least 80 percent of what's seized; 25 of those are allowed to keep 100 percent. So in those states, the DOJ move will have less of an impact than in a state like Maine or Maryland where departments are not allowed to keep a penny of what it seizes.
In the memo, DOJ writes that “the Department remains committed to the Program,” so it doesn't look like the beginning of larger reform.
The ultimate goal for reformers is the complete abolition of civil asset forfeiture. For that to happen, Congress would have to act — or the president could use executive action to change the policy for federal agencies.
“Obama has been fairly progressive on mass incarceration and 'War on Drugs' issues. Will that extend to civil asset forfeiture? We don't know,” said Thampy.
Targeting the States
While advocates said they will still fight for federal action, they say the more realistic targets are states. In 2015, Montana and New Mexico passed reforms requiring a criminal conviction for civil forfeiture.
“We're going to continue to push for reform at the state level in the many states that have terrible forfeiture laws,” Carpenter said.
In 2015, Fix Forfeiture focused its efforts on changing policies in Michigan, Ohio and Pennsylvania. Harris said his group employed the tactics of a political campaign: conducting polls, reaching out to local newspapers and lobbying lawmakers.
They had some success. Michigan passed a new law requiring more transparency in forfeiture cases, and legislation was introduced in the other two states. This year, Harris says, Fix Forfeiture plans to triple that number of states.
She said that often the biggest obstacle is getting elected officials to understand the issue. Pushing for more transparency is the first step, she said, because it gives the public and politicians something they can understand.
Harris said her group has “unfinished business in Pennsylvania.”
“[Pennsylvania lawmakers] want to change it. The process is flawed,” she said. “The anecdotal stories aren't anecdotal anymore.”
Adam Wisnieski is a contributing editor of The Crime Report. You can follow him on Twitter @adamthewiz. He welcomes comments from readers.