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January 17, 2015

Did a crack just form in the Civil Asset Forfeiture wall? (In which I interrupt my hiatus to bestow cautious praise upon the Obama administration) [UPDATED]

Most long-time C-Pol readers (and you'd have to be long-time readers, given my recent posting frequency) know I'm no fan of the Obama administration, but if this story is true in its details*, I'll give credit where credit is due.  From the WaPo, January 16:
Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without warrants or criminal charges.

Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.

Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing.

The program has enabled local and state police to make seizures and then have them “adopted” by federal agencies, which share in the proceeds. It allowed police departments and drug task forces to keep up to 80 percent of the proceeds of adopted seizures, with the rest going to federal agencies.
"Civil Asset Forfeiture" (police seizing alleged drug money or assets purchased with alleged drug money) has been the most-abused weapon in the "War on Drugs" arsenal in the past three decades. The problem is that the assets are far too often seized WITHOUT DUE PROCESS, and often WITHOUT PROBABLE CAUSE that a crime has been committed. It's hard to imagine a more egregious violation of 4th Amendment protections.

Over the years, this has led to countless cases where people traveling with significant amounts of cash -- with no criminal taint whatsoever -- have had that cash confiscated by the authorities under the official presumption that it's drug cash. Often, the police will simply seize the cash and send the people on their way without filing any charges (remember, filing charges means proving probable cause and following due process, which will almost certainly fail). Victims who have the means to file a legal challenge to get their money back are often faced with the unconstitutional burden of proving their cash was NOT related to drug activities.

This is evil, and I'm at a loss to understand how this practice has endured for three decades, except to observe that this has been a tremendous cash cow for every level of government -- the authorities seizing the goods share the proceeds with other authorities, essentially buying their silence, so the folks who COULD stop the practice have no incentive to do so. This action by AG Holder has already provoked complaints that this would harm the budgets of police departments. Sorry, but this money is as much illegally obtained (by the police) as drug money is (by the pushers). If the assets were forfeited through proper due process, I might have some sympathy for this complaint.

So, props to AG Holder if he is truly ending federal participation in the splitting of the spoils (if I'm misinterpreting the effect of his action, please let me know in the comments). The problem won't end at the state and local levels until voters get angry enough to hold their elected officials accountable. Alas, there are so many issues out there that motivate people's votes, and this one, as terrible as it is, is likely to get lost in the noise.  Sigh.


* January 21 UPDATE: I'm glad I used the disclaimer "if this story is true in its details" because, as Reason's Jacob Sullum notes January 19, Holder's action is much less significant than press reports made it out to be:
Holder's order applies only to "adoption," which happens when a state or local agency seizes property on its own and then asks the Justice Department to pursue forfeiture under federal law. "Over the last six years," the DOJ says in the press release announcing Holder's new policy, "adoptions accounted for roughly three percent of the value of forfeitures in the Department of Justice Asset Forfeiture Program." By comparison, the program's reports to Congress indicate that "equitable sharing" payments to state and local agencies accounted for about 22 percent of total deposits during those six years. That means adoptions, which the DOJ says represented about 3 percent of deposits, accounted for less than 14 percent of equitable sharing. In other words, 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.
Phooey. It's better than nothing, I guess, but it's hardly worth one cheer, much less three.

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