A legal tool meant to take wealth and assets from suspected drug dealers has been halted by the Department of Justice (DOJ) after years in which millions in valuables were seized from people never charged with a crime.
The move by U.S. Attorney General Eric Holder has broad consequences for law enforcement and thousands of Americans ensnared by the federal civil asset forfeiture law. Holder ordered an immediate end to a part of the law that enabled state and local police to take and keep cash and property without evidence or arrest. Called the “adoptions program,” the law had allowed municipal or state police agencies to present seized property for the federal government to “adopt.”
When the program became more aggressively used 30 years ago as the war on drugs peaked, many states lacked asset forfeiture laws, or the state funneled the proceeds from seized property to its general fund. By contrast, the federal civil asset forfeiture program returned to local police agencies 80% of the seized properties’ value.
Under criminal law, such seizures would demand probable cause that a crime occurred, or charges would be dismissed. Holder noted that local police still have that tool. And he exempted from the ban the seizing of weapons, ammunition, explosives or child pornography, which are deemed matters of potential public safety.
“With this new policy, effective immediately, the DOJ taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said. “This is the first step in a comprehensive review that we have launched of the federal asset forfeiture program. Asset forfeiture remains a critical law enforcement tool when used appropriately — providing unique means to go after criminal and even terrorist organizations. 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.”
Ending the asset forfeiture law was viewed as either a huge victory for civil liberties or a crippling blow to local law enforcement’s ability to fight crime, particularly sales of illicit and addictive drugs.
“The U.S. Attorney recently announced an immediate end to the ability take cash or property from people without ever criminally charging them,” said Laura W. Murphy, Washington legislative office director for the American Civil Liberties Union, in a statement. “This is a significant advancement to reform a practice that is a clear violation of due process that is often used to disproportionately target communities of color,” Murphy said. “Now Congress and state governments should pass legislation to end the practice of seizing innocent Americans’ property and protect their due process.”
A prior effort to reform the DOJ’s civil seizure forfeiture program in the 1990s was dropped after formidable opposition by law enforcement departments and political representatives. But over the years, journalists have reported abuses of the law, and the timeliness of a series of articles in the Washington Post in September 2014 seems to be partly responsible for Holder’s announcement.
In the Post series, a team of reporters concluded that since 9/11 put new federal pressure on local governments to police for terrorism, the financial strain has been funded in a controversial way: Hundreds of millions of dollars in cash has been seized under federal forfeiture from motorists pulled over for minor traffic infractions.
The Post reported that thousands of drivers were almost never arrested or charged with crimes, and less than half of these people had the means to hire attorneys to win back their seized cash. A private intelligence network known as the Black Asphalt Electronic Networking & Notification System, the Post reported, “enabled police nationwide to share detailed reports about American motorists — criminals and the innocent alike — including their Social Security numbers, addresses and identifying tattoos, as well as hunches about which drivers to stop.”
Civil liberties advocates noted that some populations, such as known substance abusers with a record for possession or driving under the influence, might be especially vulnerable in such stops.
Startling cases reported in the Post series involved a videotaped roadside arrest by a law enforcement officer — part of a group that trains police officers and departments how to execute such highway seizures.
A man was pulled over for what he’s told was failure to put on his turn signal soon enough. The video shows the driver who was stopped for the dubious violation refusing to grant the officer permission to search his vehicle. The motorist subsequently is asked if he has any cash in the vehicle. He’s then made to wait — technically a detention once the traffic ticket is written — while a drug-sniffing canine is summoned.
The dog supposedly indicates the presence of illegal drugs. (Civil liberties advocates have pointed out that much of U.S. currency carries drug residue.) The man’s car is searched, but no drugs are found. Nevertheless, several thousand dollars in cash is taken from the man. It was not returned until he prevailed in a costly court case.
A video report with the Post’s series featured several such accounts. Following the newspaper’s articles, there were Congressional calls to abandon the civil seizure forfeiture law.
While Holder didn’t cite the series as he announced a halt to the program, he did mention that a review of the program would ensure that civil liberties weren’t violated. He also said that since 2000, more than $4 billion from police-seized assets have been awarded to crime victims.
The value of the federal program, prior to states adopting their asset forfeiture laws, Holder said, “was a way to keep those assets from being returned to criminals.” He went on to say that “today, however, every state has either criminal or civil forfeiture laws,” so the adoptions programs “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.”
The new policy excludes seizures resulting from joint federal-state investigations and those made with warrants issued by federal courts. In addition, there appears to be serious discussion in Congress about passing legislation that will bring further changes in federal rules governing asset seizures.