Assessing Holder's new policy curtailing asset forfeiture

|The Volokh Conspiracy |

Like co-blogger David Post, I welcome Attorney General Eric Holder's recently announced policy curtailing federally-sponsored asset forfeiture. It is an important step towards ending abusive practices that enable law enforcement agencies to confiscate the property of innocent people who have never been convicted of any crime (or, often, even with charged with one). The new policy severely restricts a federal program known as Equitable Sharing, which incentivizes to state and local law enforcement agencies to seize property by involving federal agencies that then let the state and local officials keep up to 80% of the proceeds—even if state law would otherwise prevent them from keeping the money.

It is also significant that this problem has attracted widespread mainstream attention after a long period when it was of interest primarily to libertarians. As David notes, the Institute for Justice deserves great credit for its work in promoting the issue.

While there is no doubt that the new policy is a step in the right direction, Radley Balko has an insightful post raising questions about exactly how far it goes, and whether it might be partially undermined by loopholes. Radley recognizes that "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." As he notes, "The program won't end civil asset forfeiture abuses entirely, but it will stop local police agencies from circumventing state laws aimed at reining them in," such as laws preventing police departments from profiting from the seizures and laws imposing strict evidentiary standards requiring the authorities to prove that the owners have actually committed a crime.

But he wonders whether its impact might be undercut by some unfortunate exceptions, which exempt "(1) seizures by state and local authorities working together with federal authorities in a joint task force; (2) seizures by state and local authorities that are the result of joint federal-state investigations or that are coordinated with federal authorities as part of ongoing federal investigations; or (3) seizures pursuant to federal seizure warrants, obtained from federal courts to take custody of assets originally seized under state law."

Radley comments:

The first exception is important. If it only applies to those investigations in which federal law enforcement personnel are actively involved, that's less troubling…. But this exception could also apply to the hundreds of multijurisdictional drug task forces around the country. These task forces are usually made up of police officers from local police agencies (a few from the sheriff's office, a few from nearby city and town police departments). Because they span several jurisdictions, they aren't usually answerable to a single sheriff or police chief. They're typically funded with federal grants, state grants and asset forfeiture. If the fact that they are federally funded qualifies them as a "joint task force" for the first exception, that's a really huge loophole…

The second and third exceptions are important, too. Basically, they still enable local authorities to take an investigation federal if they're really determined to do so. It just requires them to get active participation from a federal law enforcement official. As a whole, then, the new policy doesn't eliminate equitable sharing so much as puts some roadblocks in front of local law enforcement before they can use it. But those roadblocks aren't insignificant.

Ultimately, he concludes that "the new policy is great, but it could be better….Whether it's a major reform or a monumental one depends on whether those hundreds of anti-drug task forces are covered by that first exception." That assessment strikes me as right on target.

UPDATE: I have made a few minor additions to this post.