While headlines in Yahoo News and Raw Story blare, respectively, “U.S. attorney general bans asset seizure by local police” and “No more asset seizure: Eric Holder bans controversial ‘war on drugs’ tactic,” the truth is that United States Attorney General Eric Holder on Friday changed US Department of Justice policy in a manner that will result in at most a small rollback of asset seizures.
It is true that there appears to be a rollback in the police state for a change. The catch is that the rollback is nowhere near the monumental change that some people in the media are trumpeting. The many and broad exceptions in Holder’s order all but swallow the announced headline-garnering rollback. Depending on how the order is interpreted and implemented, it may provide almost no asset seizure relief.
Holder’s order terminated immediately on Friday a portion of the US government’s Equitable Sharing Program. The program has funneled billions of dollars to local police departments via seizures of people’s cash and property without any demonstration required of a relation between the person deprived of the assets, or the assets themselves, and criminal activity. In particular, the order ends some uses of “federal adoption” — a process defined narrowly in the order as when seizures by only state or local police and based only on state law are categorized as being US government seizures. The bulk of the proceeds so “adopted” may then be routed back to the involved state or local police departments.
Otherwise, the order leaves US asset seizure policy unchanged.
The Department of Justice announcement of the policy change further notes that the US Department of Treasury is issuing consistent changes for the Treasury asset seizure policy.
The limited scope of the rollback is admitted in the Justice Department announcement. The announcement states:
Indeed, adoptions currently 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.
Several limitations spelled out in the order illustrate the small impact of the order and the potential for the order’s rollback to be easily circumvented. The order states:
This order does not apply to (1) seizures by states and local authorities working together with federal authorities in a joint task force; (2) seizures by state and local authorities that are the result of joint federal-state investigations or that are coordinated with federal authorities as part of ongoing federal investigations; or (3) seizures pursuant to federal seizure warrants, obtained from federal courts to take custody of assets originally seized under state law.
With the growth of the national police, as well as national criminal law, and the increased integration of state and local police departments with the national police, these limitations very much diminish the scope of the order.
The limitations may also create new problems. A very worrisome potential consequence of Holder’s order arises from state and local police now having an incentive to incorporate the US government as a partner in even more police activity in an effort to obtain adoption benefits. Thus the order may advance the ongoing process of militarizing police.
Notably, Holder’s order also says adoption can continue without change in regard to “property that directly relates to public safety concerns, including firearms, ammunition, explosives, and property associated with child pornography.”
Do not be fooled into believing the listed types of seized assets compose the entire exception. The order outright states that adoption may continue to be used for any property under the “public safety exception” so long as the Assistant Attorney General for the Criminal Division gives approval.
Further indicating the limited protection the new order affords, the Justice Department explains in the announcement that, given states’ enactment of their own oppressive seizure laws over the last few decades, the US workaround is no longer needed to ensure police can continue violating individual rights with impunity:
The Justice Department’s policy permitting federal agencies to adopt seizures dates from the inception of the Asset Forfeiture Program in the 1980s. The Treasury Department’s adoption policy has been part of its Asset Forfeiture Program since its inception in 1993. At the time that these policies were implemented, few states had forfeiture statutes analogous to the federal asset forfeiture laws. Consequently, when state and local law enforcement agencies seized criminal proceeds and property used to commit crimes, they often lacked the legal authority to forfeit the seized items. Turning seized assets over to federal law enforcement agencies for adoption was a way to keep those assets from being returned to criminals. Today, however, every state has either criminal or civil forfeiture laws, making the federal adoption process less necessary.
While the rollback contained in Holder’s order is far from the grand achievement suggested in some news headlines, even a small rollback can lead to relief for some individuals. It can also serve as a starting point for further rollbacks.
To the extent state laws provide greater protection of rights in the limited cases in which adoption will no longer be available, the rollback may help protect rights. Also, to the extent the rollback will result in state and local police departments’ asset seizure proceeds being directed to general revenue or elsewhere instead of back into police departments’ own budgets, the incentive for asset seizures may be reduced. Further, with the US government workaround limited, some state and local governments may find more reason to impose greater limitations on their own asset seizure policies.
Yet, if the US government does not follow Holder’s order with action to significantly back off from asset seizures and demonstrate much more respect for privacy, due process, and property rights, it is unlikely that people demanding an end to rights violations associated with asset seizures will feel much satisfaction. For these advocates, the progression toward medical and recreational marijuana legalization in America may show the path to success: Big rollbacks in cash and other property seizures in America will likely only come as a result of increased public opposition to the seizures coupled with state and local governments reversing course and directly opposing the seizures.
