Civil Asset Forfeiture

Forfeiture News: New York's Program a Mess; Lawmakers Want to End Federal Asset Sharing Program


Loretta Lynch wants your stuff.
Credit: US Mission Geneva / photo on flickr

An audit of New York's State Police finds they have done a lousy job of keeping track of the $2 billion in assets they've seized during criminal investigations, sometimes failing even to properly report cash and vehicles they've taken.

Furthermore, though critics of asset forfeiture often view the program as a sinister way for police to pad their budgets, New York police aren't even doing that right. They're selling off what they've seized for just a fraction of the price they should be getting. From Jorge Fitz-Gibbon of The Journal News in New York:

Police agencies have the authority to seize assets during the course of an investigation if they determine that the items were used to commit a crime, constituted proceeds from a crime or were purchased with proceeds from a crime. Any return on the sale of seized items is used to enhance law enforcement efforts.

The comptroller's audit looked at 1,788 seizures made by state police, including 1,408 collections of cash, 304 vehicles and 49 properties — collectively worth $1.2 billion.

In one instance, the audit said troopers received $840,000 less than it expected from a forfeited asset. In a sampling of 107 pending cases, auditors said seized items in 56 cases, valued at $992 million, had been closed with state police receiving only $12.2 million, or 1.25 percent, in return.

Sixteen cash seizures totaling nearly $40,000 and three vehicles had not been included on the state police seized assets database and were not reported to its coordinator. In addition, state police continued to hold on to $700,000 in seized items that had not been forfeited and was deemed abandoned. Those assets should have been turned over to the Comptroller's Office of Unclaimed Funds.

Perhaps pointing out that New York state's asset forfeiture system is inefficient and slow is not an "Ah, ha!" moment for us critics of the system. It's not like it would be better if the police turned this stuff around faster. But do keep in mind that if the police expect that they're going to make X amount of dollars from asset forfeiture and budget for it, then only get a tiny percent of X, one solution may be to crank up the forfeiture machine even bigger and stronger.

Meanwhile, some legislators are asking the federal government to entirely end the Department of Justice's Equitable Sharing Program with the states. This is the program where the federal government partners with local law enforcement agencies for busts, and then the local agencies get to keep 80 percent of the proceeds. It's a huge generator of revenue, but also a huge incentive to try to find an excuse to arrest people and seize their stuff, all in the name of the drug war.

Congressmen Jim Sensenbrenner (R-Wis.) and John Conyers (D-Mich.) joined Sens. Chuck Grassley (R-Iowa) and Mike Lee (R-Utah) in sending a letter to Attorney General Eric Holder encouraging him to shut the program down:

We are members of a bicameral, bipartisan group of lawmakers who share a strong interest in civil asset forfeiture reform.  We believe that in many circumstances, civil asset forfeiture is a valuable tool in combating serious wrongdoing.  However, we have concerns that the government is not using the process fairly and instead is infringing on the rights of small business owners and motorists, some of whom are our constituents.  

One area that we find particularly problematic involves "adoptive seizures" and "equitable sharing."  Under this arrangement, state and local law enforcement agencies bring property seized under state law to a federal seizing agency for federal forfeiture and then can receive up to 80% of the proceeds of the resulting forfeiture.  We are concerned that these seizures might circumvent state forfeiture law restrictions, create improper incentives on the part of state and local law enforcement, and unnecessarily burden our federal authorities.  

In a recent meeting with representatives of the Department of Justice, we were told that the Department is in the midst of an internal, top-to-bottom review of its entire asset forfeiture program.  As part of this review, we encourage you to consider discontinuing "adoptive seizures" and "equitable sharing." 

Their recommendations are not unlike Sen. Rand Paul's proposed Fifth Amendment Integrity Restoration (FAIR) Act. Paul's plan, which we've praised as part of reform recommendations for the incoming Congress, would increase the evidentiary threshold for law enforcement to seize somebody's assets and send the money to the Treasury instead of the Department of Justice to discourage the profit motive.  The letter from Sensenbrenner and others point out that there's nothing requiring the Department of Justice actually engage in the sharing.

But Holder is on his way out. President Barack Obama's proposed replacement, Loretta Lynch, seems to love asset forfeiture. Her U.S. attorney's office, which serves Eastern New York state (what a nice tie-in!) has brought in more than $100 million between 2011 in 2013. The Wall Street Journal notes that feds in her area have confiscated almost half a million from a small company that stocks food at convenience stories without ever charging them with a crime. The family is being represented by the Institute for Justice, noted foes of civil asset forfeiture programs far and wide.