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Giving Credit where Credit Is Due

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US Attorney General Eric Holder has been subjected to a good deal of criticism during his time in office, but even many of his fiercest critics have joined the chorus of praise for an order he signed last week entitled "Prohibition on Certain Federal Adoptions of Seizures by State and Local Law Enforcement Agencies" — and for good reason. For years the Department of Justice (DOJ) has been using the "adoptions" referred to in Holder’s order to promote an obnoxious practice called "civil asset forfeiture" and make it an integral part of the American criminal justice system. The result, as one constitutional law scholar described it in The Washington Post, has been "a civil-liberties debacle and a stain on American criminal justice." No wonder so many commentators have welcomed the news that the head of the agency has finally acknowledged that civil asset forfeiture is a problem and is taking steps to address it.

Civil asset forfeiture is a process whereby law enforcement agencies seize property they suspect has been used in, or derived from, criminal activity. It is a civil action against the property itself, which results in cases with names like "United States v. $4,300." The owner of the property need not be charged with, let alone convicted of, committing a crime. In fact, the owner need not even be a suspect, as many a homeowner has discovered after losing his home because a child or grandchild was alleged to have committed a minor drug offense on the property.

In order to recover property seized through civil asset forfeiture the owner must initiate an expensive and time-consuming lawsuit in which he or she bears the burden of proving that the property was not used or acquired in an impermissible way. Most seizures go unchallenged: sometimes, no doubt, because the owner actually is a criminal, but often because the value of the property is too small to justify the cost of the suit (which is typically thousands of dollars) or because the owner is too ill-informed and intimidated to assert his or her rights. To make matters worse, when owners do undertake the onerous burden of such lawsuits, the standard of proof is not, as in a criminal trial, "beyond a reasonable doubt;" instead, the "preponderance of evidence" standard applies. What this means is that the government need not present solid and convincing evidence that the property has criminal associations. In order to win at trial and keep the seized property, all it must do is show that the evidence makes this claim slightly more likely than not. In spite of this low standard of proof, when The Washington Post looked at hundreds of cases in which property owners had sued to recover their property, it found that more than 40% of them eventually won in court. 

For many years civil asset forfeiture was regarded as an archaic relic — something comparable to putting animals on trial for murder. The practice was revived in the 1970s as a novel weapon in the War on Drugs, but it did not start to be widely used until the Comprehensive Crime Control Act of 1984 put in place a well-organized program administered by the DOJ. After that the use of civil asset forfeiture increased steadily and rapidly until, in 2012 (under Eric Holder’s leadership!) the DOJ took in a record $4.2 billion in forfeiture proceeds.

Civil asset forfeiture would have been a scandalous affront to Americans’ property and due process rights even if its use had been confined to federal law enforcement, but it soon became popular with state and local law enforcement agencies as well. And this is where the "adoptions" referred to in the Attorney General’s order come into play. As a way of encouraging state and local law enforcement to assist with the asset forfeiture program, the DOJ almost immediately began promoting a policy called "equitable sharing" under which it "adopts" property seized by state and local police forces, processes it under federal asset forfeiture laws, and then returns a substantial portion of the proceeds to the force that made the seizure. To compound the problem, eventually most states enacted civil asset forfeiture laws of their own, but in spite of these state laws, equitable sharing has continued to flourish. For example, last year The Washington Post reported that since 9/11, "There have been 61,998 cash seizures…without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion."

It took a while for Americans to understand what was happening, but eventually voices started to be raised in opposition to civil asset forfeiture. One of the leaders in the fight was the Institute for Justice (IJ), which published a report in 2010 entitled "Policing for Profit" in which it analyzed civil asset forfeiture abuse on a state-by-state basis. Public consciousness of the problem was raised further in 2013 when a long essay appeared in The New Yorker that recounted numerous harrowing stories of innocent people victimized by such abuse. The tipping point seems to have come last year when The Washington Post produced a multipart investigative piece in which it presented its analysis of hundreds of thousands of DOJ seizure records and also provided many additional horror stories. Apparently as a direct result of that piece, the leaders of the House and Senate Judiciary Committees recently sent a joint letter to the Attorney General urging him to discontinue the equitable sharing program altogether. 

The order that the Attorney General signed last week does not go as far as the House and Senate leaders urged, and it certainly does not put an end to civil asset forfeiture. Its "prohibition" of federal adoptions is qualified by numerous exceptions that, depending on how they are interpreted and implemented, could prove to be pretty broad. And it does nothing to address the use of civil asset forfeiture by federal law enforcement under federal law or its use by state and local law enforcement under state laws, and far more property is seized in these ways than through equitable sharing.  Nevertheless, Holder’s order is undoubtedly good news. Not only does it appear to be a concrete and positive policy change in its own right, but in an accompanying statement Holder refers to it as, "The first step in a comprehensive review that we have launched of the federal asset forfeiture program." Moreover, the Congressional leaders who wrote to him about adoptions have indicated that they intend to go forward with their own investigation. So we have every reason to hope that more reform will follow.

The announced prohibition on federal adoptions should come as particularly good news for North Carolinians because, when it comes to civil asset forfeiture, federal adoptions are the main thing North Carolinians have to fear. Unlike most states, North Carolina has been reluctant to embrace civil asset forfeiture, probably because our state Constitution requires that, "Proceeds of all penalties and forfeitures . . . [must] be faithfully appropriated and used exclusively for maintaining free public schools." Instead, under North Carolina state law forfeiture is generally permitted only when the owner of the property in question has been charged with and convicted of a crime. Unfortunately, many North Carolina law enforcement agencies have been using the DOJ’s equitable sharing program to evade the protection offered by these features of North Carolina state law. The IJ study referred to above found that the proceeds of assets seized by North Carolina law enforcement agencies and returned to them through the equitable sharing program have averaged more than ten million dollars per year since 2000. If the DOJ abides by the letter and the spirit of the Attorney General’s order most of this will stop, and the property and due process rights of the citizens of North Carolina will be among the most secure in America as far as asset forfeiture is concerned.

As I noted at the outset, the Attorney General has come in for a lot of sharp criticism over the years. His detractors have been particularly harsh about his handling of the increasingly fractious relationship between law enforcement and the African American community, complaining that, instead of taking steps to quiet the fear, suspicion, and hostility that many African Americans feel towards the police, his words and actions following the deaths of Trayvon Martin, Michael Brown, and Eric Garner have had the effect of pandering to and intensifying those feelings. Be that as it may, there really are a lot of serious problems with the American system of criminal justice — the War on Drugs, the militarization of the police, the increasing reliance of local governments on fines as a source of revenue, lack of accountability for misconduct, etc. — and those problems really do cause a disproportionate amount of suffering to African Americans. The abuse of civil asset forfeiture is among the worst of those problems, not just because it violates fundamental property and due process rights, but also because it perverts the proper relationship between the police and the public they are supposed to protect and serve. Civil asset forfeiture turns the police into predators and the public into their prey, and African Americans are among the groups most likely to be preyed upon. The Washington Post investigation referred to above found that, "In 400 federal court cases…where people challenged seizures and received some money back, the majority were black, Hispanic or another minority."

What all this suggests is that, unlike the things Eric Holder has done that were intended to deal directly with fractious relations between African Americans and the police, stopping civil asset forfeiture abuse might actually go a long way to improve matters. The order that he signed last week will not accomplish that on its own, but it is a significant step in the right direction. By all means let us give him credit for taking it, and let us hope it represents the beginning of the end for this "stain on American criminal justice."

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Jon Guze is Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School in… ...

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