Eric Holder’s divisive tenure at the Justice Department is coming to a close, in at least one area, on a somewhat positive note. Last month, the outgoing attorney general announced that he would scale back the Justice Department’s “equitable sharing” program, under which state and local police forces could use federal law to seize property and assets from citizens without charging them with crimes. When operating on federal mandates, the police departments kept up to 80 percent of the seized assets, while federal agencies “adopted” the rest. “With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said.
Civil forfeiture began in 1984 as part of the war on drugs, and its use has helped combat the international drug trade and terrorism funding networks. But its abuse has become so rampant that innocent Americans are now its main targets. According to the Justice Department’s guidelines, civil asset forfeiture “deprives wrongdoers of the proceeds of their crimes.” One problem: proof of wrongdoing is not required in civil forfeiture cases. Instead of charging the owners of property and having to prove guilt “beyond a reasonable doubt,” law enforcement charges the property itself. Civil forfeiture requires only suspicion based on a “preponderance of evidence” that the property was connected with some criminal activity. Then, the burden of proving innocence falls on the property owner. Civil forfeiture is thus distinct from criminal forfeiture, under which property can only be confiscated after people are found guilty in court. And in civil forfeiture cases, the government doesn’t guarantee legal assistance to the accused. The costs of fighting back in court are often high, and many choose to cut their losses and abandon their property.
In addition to its dubious constitutionality, civil asset seizure has also become rife with corruption and abuse. The Justice Department requires that funds from its equitable sharing program be used only for law enforcement purposes, but the money is often spent on other things—including a Zamboni, a margarita machine, first class plane tickets, and a Dodge Viper. Perverse incentives lead to rampant seizures. In police departments, forfeiture funds are viewed as “pennies from heaven,” as Columbia, Missouri police chief Ken Burton said in a moment of candor. He continued, forfeiture “gets you a toy or something . . . We try not to use [forfeiture funds] for things we need to depend on.”
Holder’s reform is a welcome step, but it applies only to a small percentage of civil forfeitures—“adoptions,” in which state or local law enforcement seizes property and then requests forfeiture under federal law. As Reason’s Jacob Sullum points out, adoptions account for less than 14 percent of equitable sharing, meaning that “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’s because most of the funds in the equitable sharing program come from joint operations, often loosely defined, between federal and state authorities. State and local civil-forfeiture laws, some quite draconian, will also be unaffected.
While some states have passed laws curtailing civil forfeiture, the practice will continue to expand unless federal laws—which allow local officials to circumvent state laws—are changed. One promising attempt to do so is H.R. 5502, sponsored by Reps. Tony Cardenas, (D-CA) and Scott Garrett, (R-NJ), a companion bill to Senator Rand Paul’s (R-KY) Fifth Amendment Integrity Restoration Act. The FAIR Act would raise the standard for civil forfeiture from “a preponderance of the evidence” to “clear and convincing evidence,” and take away the government’s ability to transfer seized property back to local police departments through equitable sharing.
A plausible argument can be made that civil forfeiture, while once useful in fighting international crime, is unconstitutional. After all, the Fourteenth Amendment was passed to make the Bill of Rights—including the Fourth Amendment’s protections against unreasonable seizures and the Fifth Amendment’s guarantee of due process—apply to all the states. For the time being, critics can hope that Holder meant it when he referred to his order as “the first step in a comprehensive review.” Much more needs to be done.