The Volokh Conspiracy
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Attorney General Eric Holder's recent policy limiting federal sponsorship of civil asset forfeitures has gotten a good deal of applause, including here at the Volokh Conspiracy. Many hoped that the federal government would seriously curtail federal policies that enabled state law enforcement agencies to take large quantities of property from people who have never been convicted of any crime (or, often, even charged) and keep it for themselves.
But Jacob Sullum has a good column pointing out the limits of the new policy. Unfortunately, the exceptions are broad enough to almost swallow the rule:
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…."
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 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…
As Sullum puts it, under the new policy "cops are still robbers."
Holder's policy is still an improvement over the preexisting status quo, since it does forbid at least some categories federally-sponsored forfeitures. But it may be only a very modest improvement. As Sullum emphasizes, we should not fall prey to "the false impression that the problem has been solved."