Attorney General Eric Holder’s January 16th order modifying the DOJ’s civil asset forfeiture policy is a step in the right direction, but does not go far enough. Civil asset forfeiture laws empower law enforcement agencies to seize property that is “associated” with criminal activity without having to charge the owner with a crime. Although there are many problems with this law, Holder’s order only deals with the issue of adoption. It does not eliminate the Justice Department’s Equitable Sharing Program, which lets police dodge state limits on forfeiture. Any civil forfeiture attorney will tell you that this is a problem.
Part of the confusion lies in the different terms the federal government uses to describe the different ways it works with state and local police agencies to seize assets. “Equitable sharing” is the broad term the government uses any time the feds and local police use federal forfeiture law to split up the assets seized in a joint investigation. “Adoption” cases are a subset of cases within the equitable sharing program. Adoption cases have minimal federal involvement. They are cases in which a local police agency simply calls up a field office of the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms and Explosives or other federal law enforcement agency to sign some papers so that the case gets kicked up to federal court, where it will be governed by the less restrictive federal forfeiture laws.
Federal agencies will no longer be able to accept or “adopt” assets seized by local and state law enforcement agencies. Adoption from now on will be limited to property that directly relates to public safety concerns, including firearms, ammunition, explosives, and property associated with child pornography; it notably does not include drug cases, which account for a large share of forfeitures. That is good news, since it means cops cannot seize cash or other property based on vague, unsubstantiated suspicions that it is somehow related to drug activity and then use adoption to keep up to 80% of the loot. But cops still can do essentially the same thing if the seizure results from an investigation assisted by or coordinated with “federal authorities.” That’s a big loophole.