Cops Are Still Robbers

Eric Holder's new forfeiture policy affects only a small share of seizures.

Contrary to what you may have read recently, Attorney General Eric Holder did not put an end to civil forfeiture, a form of legalized theft in which the government takes property allegedly linked to crime without even charging the owner, let alone convicting him. Nor did Holder stop civil forfeiture by the federal government or by the Justice Department. He did not even eliminate the Justice Department's Equitable Sharing Program, which lets police dodge state limits on forfeiture. Instead Holder restricted part of that program: "adoption," where a state or local law enforcement agency seizes an asset and then asks the Justice Department to pursue forfeiture under federal law. Holder's reform was a step in the right direction, but not nearly as big a step as much of the press coverage implied.

In an order issued on January 16, Holder said 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." Judging from the DOJ's new instructions to agencies seeking adoption, that list is exhaustive, and 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, especially since there are hundreds of federally subsidized drug task forces across the country, composed of local cops who are often deputized as federal agents. "As virtually every drug task force I know of has a federal liaison on call," says Eapen Thampy, executive director of Americans for Forfeiture Reform, "this means business as usual [for] local law enforcement using civil asset forfeiture through the Equitable Sharing Program to enforce the Controlled Substances Act and other federal statutes. In other words, the exception swallows the rule."

Holder's order also explicitly exempts "seizures pursuant to federal seizure warrants, obtained from federal courts to take custody of assets originally seized under state law." Brenda Grantland, a California attorney who specializes in forfeiture cases, says that means "if a federal prosecutor really wants to adopt a state seizure," he can "just ask the federal judge to approve a federal seizure warrant."

Provided there is some sort of coordination, federal participation, or post-hoc judicial approval, these forfeitures are not considered adoptions. But they have a similar effect, allowing local agencies to take advantage of federal forfeiture law, which requires less evidence and lets cops keep a bigger share of the loot than many state laws do. In fact, the seizures that are not covered by Holder's new policy account for the vast majority of the money that state and local agencies get from federal forfeitures—something like 86 percent, judging from the Justice Department's numbers for fiscal years 2008 through 2013. Similarly, a 2012 report from the Government Accountability Office noted that "adoptions made up about 17 percent of all equitable sharing payments" in 2010.

Robert Morris, an attorney who blogs at Hammer of Truth, argues that such numbers, which reflect the dollar value of seizures, understate the impact of Holder's reform, since they do not tell us how many cases qualify as adoptions. If adoptions tend to be worth less than the other forfeitures in the Equitable Sharing Program, they may account for a larger percentage of cases than the dollar figures suggest. Morris says "cautious excitement" is the appropriate response to the new DOJ policy.

There was a lot of excitement after the DOJ announced its new policy but not much caution. The Washington Post, which broke the story, reported that Holder had "barred local and state police from using federal law to seize cash, cars and other property without warrants or criminal charges," leaving the impression that equitable sharing had been eliminated rather than pared back. The Post, which recently has done an excellent job of highlighting forfeiture abuses, said the new policy "would eliminate virtually all cash and vehicle seizures made by local and state police from the [equitable sharing] program." The Post did note, deep in the story, that Holder said equitable sharing would continue in cases "where local and federal authorities are collaborating." But it said "most of the money and property taken under Equitable Sharing since 2008…was not seized in collaboration with federal authorities," which is the opposite of what the department's numbers indicate.

Many journalists seem to have taken their cue from the Post. In a story headlined "Justice Ends 'Asset Forfeiture' Program," The Hill reported that Holder's order meant "most police departments could not use federal law to seize property from individuals when they have no reason to believe a crime has been committed." The paper, which is aimed at Capitol Hill insiders, said the DOJ "would, in most cases, no longer run a controversial 'asset forfeiture' program."

Time reported that Holder had said "state and local officials would no longer be allowed to use federal law to seize private property such as cash or cars without evidence that a crime had occurred." In a post titled "Cops Can No Longer Just Seize Your Money," New York magazine said Holder had "prohibited Equitable Sharing, a program that allowed local police departments to use federal law to seize cash and other assets in the name of justice. Now they will be forced to produce actual evidence that a crime has occurred before taking your stuff." Boing Boing went further, claiming Holder "has ordered police departments to cease the practice of civil forfeiture (basically, stealing stuff and selling it) unless the forfeiture is related to a specific warrant or charge." Even the Drug Policy Alliance praised Holder for "a new policy prohibiting federal agencies from accepting civil asset forfeiture assets seized by state and local law enforcement agencies unless the owner is convicted of a crime."

I initially got caught up in the excitement too, thinking Holder had eliminated equitable sharing, which four members of Congress, including three conservative Republicans, had urged him to do a week before. But after seeing skeptical comments from activists like Thampy, I took a closer look at what Holder had said. The day that Holder issued his order, the Institute for Justice, which has been fighting forfeiture abuses for years, tried to put the reform in perspective:

Today's announced policy would stop the process of adoption, where state and local officials use federal law to forfeit property without charging owners with a crime and then profit from those forfeitures, regardless of whether those forfeitures are permitted under state law. But the new policy leaves open a significant loophole, as state and local law enforcement can still partner with federal agents through joint task forces for forfeitures not permitted under state law, and state and local law enforcement can use such task forces to claim forfeiture proceeds they would not be entitled to under state law. Moreover, the federal government can still pursue its own civil forfeiture actions, where property owners face very significant burdens. And the policy does not change state forfeiture laws, many of which burden property owners and permit policing for profit.

Drug war correspondents such as Radley Balko at The Washington Post and German Lopez at Vox elaborated on those points, noting the limits to Holder's reform. But the idea that Holder did something to fundamentally change civil forfeiture seems to have taken hold among journalists less familiar with the details. Today, for instance, CNN reported that "the Justice Department recently said it was backing away from the civil asset forfeiture actions it had been taking for nearly three decades." According to CNN, "the department says it won't benefit from most seizures any longer." That is wildly inaccurate. In the very press release that announced Holder's order, the DOJ says adoptions—the only category of forfeitures affected by the new policy— "accounted for roughly three percent of the value of forfeitures in the Department of Justice Asset Forfeiture Program" during the last six years.

To its credit, CNN did point out that the new DOJ policy has no impact on state forfeitures. But I worry that the widespread confusion about what Holder did will undermine reform efforts by creating the false impression that the problem has been solved. Legislation is necessary not only to prevent cops from evading state reforms but to give property owners more protection under state and federal laws. Ideally, legislators should require a criminal conviction prior to forfeiture and keep cops from getting part of the proceeds, a policy that perverts their priorities and fosters corruption. It would be a shame if such reforms were killed by complacency.

This article originally appeared at Forbes.com.