The Attorney General Just Significantly Limited Police Powers...in a Good Way

January 17th 2015

Alex Mierjeski

In a surprise announcement yesterday, Attorney General Eric Holder introduced a ban on local and state police forces’ use of a federal law allowing them to seize cash and property from suspects without having to prove that an actual crime occurred, known as civil asset forfeiture.

The federal program known as Equitable Sharing, which until yesterday was an available option enabling police to reinvest seized money back into their departments’ operating budgets instead of their states’ general fund, has been one of the most criticized and bizarre law enforcement initiatives in recent years.

The announcement came a week after a bipartisan effort from House and Senate Judiciary committee leaders materialized in the form of a letter calling on Holder to end the system under which the sharing of civil forfeitures with police departments is allowed, which has funneled more than $2.6 billion into departments since 2001.

“It’s high time we put an end to this damaging practice,” University of Pittsburgh constitutional law scholar David Harris told the Washington Post. “It has been a civil-liberties debacle and a stain on American criminal justice.”

What exactly is civil asset forfeiture? 

Under the Equitable Sharing program, seized cash and property could be “shared” with the police departments that obtain the assets in the first place after having giving 20 percent of the cash value to federal agencies. In Philadelphia alone, authorities have seized more than 1,000 houses, around 3,300 vehicles, and more than $40 million over 10 years.

The controversial practice pits a civil action against a given asset, not against a person, shouldering basic criminal law protections aside, and forcing the victim to demonstrate ownership and innocence–but proving the cash in your wallet is yours, for example, can be hard, let alone proving it isn’t connected to a crime. Holder’s new ban omits threats to public safety, such as illegal firearms, or property tied to child pornography.

Critics of the program and practice say it has allowed state and local officers to bypass stricter state rules over civil asset forfeitures, and encourages debased incentives for officers. In some cases, confiscated cash is turned around to support niceties around departments’ office. In a John Oliver segment highlighting civil asset forfeiture, a DA office in Worcester, Mass. is cited using seized funds to buy their department liquor and a frozen margarita machine.

In some cases, abuse of the program, originally conceived of as a War on Drugs tactic and expanded in the paranoia that followed 9/11, goes beyond rural police forces.  A Washington Post investigation revealed documents that show city officials in Washington, D.C., relying on anticipated profits from civil asset forfeiture in planning future city budgets. In extreme cases, this begs the question of whether the city would lean on departments to seize the anticipated funds.

Holder’s announcement comes at an interesting juncture, as the nominee for the next Attorney General, the U.S. attorney for the southern district of New York, Loretta Lynch has her confirmation hearing before the Senate Judiciary Committee at the end of this month. In an earlier report, we noted that Lynch has been a proud advocate and proponent of civil asset forfeiture in her state.

Earlier in the year, Lynch highlighted her office’s seizure of over $904 million in private assets in 2013, telling the Brooklyn Daily Eagle in January that “collections and asset forfeiture are important tools in our arsenal as we seek to ensure that crime does not pay.” “We are honored to be part of this web of protection for the American people.”

Pending appointment as Attorney General, Lynch will be faced with a delicate choice, backing the good that can come from such a program or recognizing a system and oversight that has been left open to effortless abuse in the wake of Holder’s announcement.

Some have pointed out that Holder’s decision to halt the program is not enough, highlighting the fact that states still must enact comprehensive reforms of their own forfeiture laws, and not harping on the government washing its hands of an aspect–Equitable Sharing–of a larger problem. After all, 42 states have laws incentivizing police departments to continue with the practice.

But Holder’s ban is undoubtedly a step in the right direction. “Asset forfeiture remains a critical law enforcement tool when used appropriately – providing unique means to go after criminal and even terrorist organizations,” Holder said on Friday. “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.”