Criminal Justice

The Road Ahead for Civil Asset Forfeiture: A View from Law Enforcement

May 3, 2016

While several states continue to make inroads on civil asset forfeiture reform and thus limit law enforcement’s ability to seize private property, state reforms can often be circumvented by the federal equitable sharing program.

Under equitable sharing, the federal government litigates state forfeiture cases in return for 20 percent of the proceeds, with the remaining funds reserved for states and often directly sent to law enforcement agencies, bypassing the appropriations process. In some cases, the equitable sharing program also circumvents state requirements limiting how funds acquired through civil asset forfeiture can be used.

Although the Justice Department temporarily suspended payments from its equitable sharing program in December due to budgetary restraints, the decision was reversed last month, and the department announced it would resume payments to local law enforcement agencies.

It is against this backdrop that Stand Together Trust last week brought together experts with a wide array of experience with law enforcement to Capitol Hill to discuss the challenges with the current civil forfeiture system. They also broached the subject of what, if anything, can be done to reform the practice commonly referred to as “policing for profit.”

Moderator Eric Alston, senior policy and research analyst for Stand Together Trust, began the conversation by delving into the question of who exactly can perform federal civil forfeiture. Darpana Sheth, an attorney at the Institute for Justice and a former assistant attorney general for the State of New York, explained that the Justice Department can seize property through the Federal Bureau of Investigation; the Drug Enforcement Agency; the Bureau of Alcohol, Tobacco, Firearms and Explosives; the U.S. Attorney’s office; and the Department of the Treasury—meaning the Internal Revenue Service and even postal inspectors can seize a person’s belongings, even if that person isn’t convicted of a crime. Certain forfeitures, using administrative proceedings, bypass the judiciary entirely. “Federal civil forfeiture doesn’t need a court,” said Sheth. “The agency in question becomes the judge, prosecutor, and jury.”

Because the equitable sharing program provides an opportunity for law enforcement to fund their budgets through civil forfeiture, the profit incentive for misusing the practice is difficult to combat, argued Diane Goldstein, executive board member of the Law Enforcement Against Prohibition and a retired lieutenant commander of the Redondo Beach Police Department in California. Goldstein recalled last year’s failed attempt to reform civil asset forfeiture in the California legislature.

“Because of strong relationship,” explained Goldstein, “the law enforcement lobby asked federal agencies to weigh in, then mischaracterized the opinion to kill the bill.” For Goldstein, the ordeal was a reminder of how far removed civil asset forfeiture is from its original purpose. “Law enforcement was put into the executive branch for a reason,” she said, also noting that in 83 percent of federal equitable sharing cases, no criminal charges are ever filed. Some in federal law enforcement had argued that the California bill, which required criminal convictions to forfeit the assets, was unworkable.  Goldstein countered, “It seems absurd that in this day and age the federal government would say it’s unable to track convictions.”

For Currie Myers, senior visiting fellow at the Texas Public Policy Foundation and former sheriff of Johnson County, Kansas, such a claim was not a surprise. “What are the obstacles to reform? Money,” Myers said. But he also warned of the consequences of continuing the status quo: “It only hurts reputation if we go a bridge too far with seizures.”

John Malcolm, director of the Edwin Meese III Center at the Heritage Foundation and former deputy assistant attorney general at the Department of Justice, argued that we have already crossed that bridge. “There have been well-documented abuses of civil asset forfeiture. Every audit of the equitable sharing program has shown irregularities,” Malcolm said. “There needs to be way more transparency on this. This is all about rebalancing a skewed system.”

Another issue with audits, Goldstein argued, is that many are self-reported. As a result, large portions of the spending of forfeiture funds reported by law enforcement agencies are simply marked “Other.” “We need to remind law enforcement that is not their mission,” Goldstein said.

When asked what could be done to reform civil asset forfeiture, Sheth replied:  “The best way to combat these things, to outmuscle the law enforcement lobby, is to educate the public.”

In order to achieve such goals, the Charles Koch Foundation invites proposals for research into the practice and abuses of civil asset forfeiture and other issues related to criminal justice and policing reform.