By Anna E. Bodi, ACLR Featured Blogger

Last month United States Attorney General Eric Holder announced what the media reported as a “sweeping check on police power.”1 Holder issued an order calling for changes to the federal civil asset forfeiture program, under which law enforcement can seize cars, money, and other valuables.2 However, upon closer examination, the Attorney General’s policy changes are far from sweeping. Holder’s new limits on civil asset forfeiture are largely cosmetic changes to a program that allows law enforcement to seize individuals’ property without charging them with a crime.3

Modern civil asset forfeiture has existed in the U.S. since the 1980s, but has largely stayed out of the news headlines until recently.4 Civil asset forfeiture refers to a process by which law enforcement can seize property suspected of being connected to criminal activity.5 The federal or state government need not charge the property owner with a crime.6 Instead, the government files an action against the property itself, claiming that it is traceable to a crime.7 A property owner can then defend the innocence of his or her property.8 However, the government typically only needs to prove the property’s connection to alleged criminal activity by a preponderance of the evidence standard, rather than beyond a reasonable doubt as is required in criminal cases.9 Property owners must choose whether or not to spend their time and money hiring an attorney to attempt to retrieve their property from the government. This can be a generally futile attempt when battling the government’s low burden of proof.

Under federal and state laws, the property passes to the government if the property owner is unsuccessful in defending his or her property.10 The underlying rationale is to take some of the incentive out of crime by seizing its “profits,” literally attempting to make crime not pay.11 Few would dispute the use of asset forfeiture when convicted criminals such as drug kingpins are involved. But the incentives in civil forfeiture often lean the other way. Law enforcement has a definite incentive to seize property, providing supplemental government income. Consider the following real life example: two professional poker players, traveling with a large amount of cash, are pulled over by State Troopers while driving on the highway.12 By the end of the stop, the officers seize $100,000—money the men state was going to be used to play poker.13 No criminal charges are filed in connection with the money, but the men have to file a lawsuit to secure the return of the full amount seized.14

To counter the money in the mix, the Attorney General is taking steps to limit law enforcement opportunities related to civil asset forfeiture. Nevertheless, the changes Holder announced are not sweeping reforms limiting the financial incentives for the entire program, but were focused solely on its federal/state/local “equitable sharing” provisions.15 Equitable sharing has two aspects. A state or local law enforcement agency can conduct an investigation jointly with federal law enforcement.16 As a result of the joint investigation, the Attorney General can share forfeited property with a state or local law enforcement agency.17 The other option for equitable sharing is known as “adoption.” “Adoption occurs when a state or local law enforcement agency seizes property and requests one of the federal seizing agencies to adopt the seizure and proceed with the forfeiture.”18 The state or local agency then receives twenty percent of the seizure proceeds.19 Equitable sharing is an attractive option not only because it allows federal and local agencies to collaborate, but also because it can allow state or local agencies to circumvent potentially more restrictive state forfeiture laws in favor of looser federal laws.

Holder’s order does not apply to equitable sharing regarding joint investigations, but restricts the practice of adoption. The Attorney General prohibits adoption as a general rule, but excepts property that “directly relates to public safety concerns, including firearms, ammunition, explosives, and property associated with child pornography.”20 The order explicitly states that the prohibition applies to “vehicles, valuables, and cash.”21 While positive, the prohibition on adoption seems to be a limitation that can be easily skirted. State and local agencies can still take advantage of more lenient federal laws by (1)“working together with federal authorities in a joint task force;” (2) conducting a joint federal-state investigation or “coordinating with federal authorities as part of ongoing federal investigations;” or (3) obtaining a federal seizure warrant allowing federal officials to “take custody of assets originally seized under state law.”22> As Radley Balko, a Washington Post contributor put it: “Basically, they still enable local authorities to take an investigation federal if they’re really determined to do so.”23 And if federal laws are more lenient than the state forfeiture laws under which an agency is working, why wouldn’t they be determined to do so? There is money to be made, salaries to be paid, and equipment to be bought from these seizures.

According to the Federal Bureau of Investigation, “Many criminals are motivated by greed and the acquisition of material goods.”24 Ironically, the civil asset forfeiture program generates the same “criminal” incentives for local, state, and federal law enforcement. Law enforcement agencies have alternatives. Criminal asset forfeiture exists, allowing the government to seize the property of a person convicted of a crime beyond a reasonable doubt. Civil asset forfeiture can be a governmental money making scheme. Perhaps it achieves some of its goals of removing income and assets from the hands of criminals. However, without criminal charges, who can tell if that is true?