Cops and Coffers: Eric Holder’s Policy Change on Civil Forfeiture

Author: Jon Kelly, Associate Member, University of Cincinnati Law Review

Civil forfeiture is one of the stranger aspects of the policing power exercised by federal and state governments. In short, civil forfeiture allows governments to seize and take ownership of property believed to be associated with criminal activity—either when the property helps facilitate a crime or when the property is considered a likely proceed of criminal activity.[1] However, stories of police officers seizing thousands of dollars in property from citizens without ever bringing criminal charges has brought the controversial policy under scrutiny.[2] Attorney General Eric Holder’s recent revocation of the federal government’s “equitable sharing” policy on civil forfeiture and Senator Rand Paul’s reintroduction of the FAIR Act on January 26, 2015 to the United States Senate invites a discussion about the necessity of civil forfeiture in America and what reforms are necessary to correct the unseemly nature of civil forfeiture.[3] Given the pre-existence of criminal forfeiture, the problems created by the current incentives to officers, and the questionable justifications for the practice, civil forfeiture should be abolished or at least relegated to the fringes of law enforcement where it was first conceived.

A Brief Overview

Civil forfeiture is one of two types of asset forfeiture in American law, criminal forfeiture being the other. Civil forfeiture is, as the name suggests, a civil suit filed by the government to take ownership of property used in furtherance of criminal activity.[4] Civil forfeiture differs from criminal forfeiture in two distinct aspects. First, in a criminal forfeiture, the owner of the property is named as the defendant and forfeiture of property requires a criminal conviction.[5] Civil forfeiture, by contrast, is filed in rem with the property itself as the defendant regardless of whether the owner of the property had been involved in the criminal activity and does not require any criminal charges against the property owner.[6] Second, the government’s burden of proof in civil forfeiture cases is often lower than the burden required in a criminal proceeding.[7] While state civil forfeiture laws vary, state and federal law enforcement agencies usually need only prove the property owner’s criminal involvement by a preponderance of the evidence in order to show that the property is subject to forfeiture.[8] In contrast, because criminal forfeiture requires a criminal conviction, it imposes “beyond a reasonable doubt” as the standard for subjecting property to forfeiture. As an example, imagine George is pulled over by an officer for a traffic violation. After searching George’s car the officer finds a bag of marijuana and $800 in cash. Criminal forfeiture would require that George be arrested, charged, and convicted of marijuana distribution—with the state having the burden of proving distribution “beyond a reasonable doubt”—in order for the government to seize the cash under criminal forfeiture laws. Conversely, civil forfeiture would allow the state to seize the cash and keep it, as long as the state could show—by a “preponderance of the evidence”—that the money was related to the marijuana.

Civil forfeiture may seem like a difficult concept to justify; however, the United States government has exercised the power of civil forfeiture since the first Congress. Civil forfeiture originally served as a means of enforcing customs law against elusive defendants or those that were outside the jurisdiction of the United States.[9] By allowing the seizure and forfeiture of assets without requiring a criminal proceeding, the country could enforce the law without having to track down the owner to prove criminal conduct.[10] However, with a few exceptions—such as its extensive use during Prohibition—civil forfeiture did not become common practice until the 1980s. At that time, civil forfeiture was utilized as a weapon against drug cartels, which are more effectively combatted by seizing money than by simply causing a change in leadership due to criminal convictions.[11] However, criticism of civil forfeiture does not focus on the federal government’s treatment of drug cartels, but rather on the abuses of civil forfeiture by state and local law enforcement.

Why Civil Forfeiture Is Not-So-Civil

Civil forfeiture has been criticized both because it creates an incentive for law enforcement to seize as much property from citizens as possible, and because it affords police departments the ability to skirt state restrictions through the federal program of “equitable sharing.” The federal government and forty-two states allow at least 50 percent of the revenue from civil forfeiture to go directly to law enforcement agencies themselves, with twenty-six of those states giving the agencies 100 percent of the proceeds.[12] Law enforcement officials therefore have an incentive to abuse their discretion with seizures, because any forfeited property will add to their department’s budget.

Arguments that police abuse their civil forfeiture power must necessarily rely on anecdotal evidence, since reports on civil forfeiture are lumped together with criminal forfeiture statistics.[13] However, instances of verified abuse of forfeiture have come to light in the past. One of the most heinous is the case of Donald Scott, a man killed in a police raid that sought to shut down a marijuana growing operation.[14] The growing operation did not exist, and subsequent investigations concluded that the raid had been motivated, at least in part, by the potential proceeds from seizing Scott’s $5 million dollar home.[15] Notably, two asset forfeiture specialists, with property appraisals and specific seizure instructions, were present during the raid.[16] When the police raid of a home includes property seizure specialists, the priorities and incentives of law enforcement should be questioned and reconsidered.

Abuse can occur in more informal settings as well. In 2007 Roderick Daniels was pulled over by police in Tenaha, Texas for allegedly driving 2 mph over the 35 mph limit. After finding $8,500 in cash, which Daniels intended to use to buy a new car, the officers arrested Daniels and gave him the choice between handing over the cash or being charged with money-laundering.[17] Daniels gave up the money.[18] Roderick Daniels’s story is a far cry from what civil forfeiture should be, and the ease with which his money was seized reveals just how badly reform is needed.

Up until Eric Holder’s announcement, local law enforcement agencies could circumvent any state hurdles to civil forfeiture through federal law through equitable sharing. Equitable sharing, until recently, was the federal policy of taking assets seized by local law enforcement under state law and, if a similar federal law existed, allowing the Department of Justice to “adopt” those assets under federal law.[19] The Department of Justice would then return 80% of the value of the seized property to the same local law enforcement agency directly. Equitable sharing of adopted seizures had several appealing qualities for state and local law enforcement. Federal law’s “preponderance of the evidence” for forfeiture is a lower standard than fourteen states’ standards, making forfeiture proceedings easier at the federal level in a quarter of the country.[20] Additionally, if a state allocated anything less than 80% of seized property to law enforcement agencies, officials were incentivized to pursue adoptive seizures instead.[21] Studies have shown that states with tougher requirements or lower payouts also utilize equitable sharing more often.[22]

If It’s Not Criminal, It’s Not Civil

Given the extent of small-time forfeitures, the potential for corruption and abuse outweighs any justifications for the laws as they stand.[23] Civil forfeiture need not be completely abolished, but minor infractions should not trigger excessive property seizures by police. The burden of proof in civil forfeiture cases should be raised to “beyond a reasonable doubt” and law enforcement agencies should have little to no direct control over the distribution of forfeiture proceeds.

Calls for reform have been noted; changes to federal policy on civil forfeiture are either pending legislative approval or have already begun. On January 16, 2015, Attorney General Eric Holder announced that the federal government will no longer accept “adoptions” from state and local law enforcement agencies, effectively ending the equitable sharing of forfeitures.[24] However, the reform essentially stops at that, since state and local law enforcement will still have the ability to seize and forfeit property under their own state laws, and equitable sharing will still be available for state-federal joint operations.[25]

However, Holder’s announcement was quickly followed by Senator Rand Paul’s reintroduction of the Fifth Amendment Integrity Restoration Act (FAIR Act) on January 26.[26] The bill has some promising reforms. Most notably, the FAIR Act would raise the federal burden of proof for civil forfeiture a step higher—from “preponderance of the evidence” to “clear and convincing evidence.”[27] Any concern about law enforcement’s ability to combat drug cartels with a higher legal standard should be limited, considering that seizures would still be possible and that less direct methods of combating cartels are viable.[28] The bill would also eliminate the Attorney General’s discretion over civil forfeiture proceeds, and instead deposit the proceeds into the General Fund of the Treasury.[29] Reporting requirements would also change as the Justice Department would have to distinguish between property collected by civil forfeiture and criminal forfeiture in their annual reports, something not currently required by law.[30] This change in reporting would help shed a good deal of light on abuses in asset forfeiture. Although only proposed as a federal law, the FAIR Act is exactly the type of reform needed at both the federal and state levels.

In fiscal year 2014, the Department of Justice collected almost $4.5 billion through asset forfeiture.[31] State law enforcement agencies received over $433 million of that fund through equitable sharing.[32] And while state law enforcement agencies can no longer rely on equitable sharing to increase revenue, civil forfeiture authority still exists under state law, and most states give law enforcement direct control of the property seized.[33] States should amend their asset forfeiture laws, with the FAIR Act as a model, so that proceeds are deposited into the general government fund and the burden of proof is raised to “clear and convincing” at a minimum.[34] Thus, officers and officials will be less tempted to abuse the asset forfeiture power if they only receive the indirect benefits of these efforts through general budgetary distributions of forfeited assets. A higher burden of proof will provide owners of seized property with stronger protections in court, and should therefore also dissuade law enforcement officials from seizing property without stronger evidence of criminal activity.

[1] This summarization of civil forfeiture was drawn from the relevant federal law, as states can also have their own individualized civil forfeiture law. See 18 U.S.C.A. § 981 (2009).

[2] Examples abound. One such story is the case of Jennifer Boatright and Ron Henderson, who had over $6,000 seized in Texas in 2007 when a marijuana pipe was found in their vehicle. Sarah Stillman, Taken, The New Yorker, August 12, 2013, http://www.newyorker.com/magazine/2013/08/12/taken.

[3] Fifth Amendment Integrity Restoration Act of 2015, S. 255, 114th Cong. (2015).

[4] See 18 U.S.C.A. § 981 (2009).

[5] Scott Bullock et al., Policing for Profit: The Abuse of Civil Asset Forfeiture 9 (Inst. for Just. ed., 2010).

[6] Compare 18 U.S.C.A. § 983 (2009) with 18 U.S.C.A. § 982 and with In re Winship, 397 U.S. 358 (1970).

[7] 18 U.S.C.A. § 983 (2009).

[8] Id. Different types of property can be subject to different standards. However, fourteen states require only “probable cause” for some property, twenty-seven states require “preponderance of the evidence” for some property, and only 13 states require “clear and convincing” or higher. Overlap occurs since some states have a higher standard for real property). Bullock supra note 5, at 22.

[9] Bullock supra note 5, at 10.

[10] Id. at 10.

[11] Id.

[12] The federal government’s fund is known as the Asset Forfeiture Fund and disbursement is under the discretion of the Justice Department. Id. at 10 & 17.

[13] In FY 2014, the Justice Department deposited just under 4.5 billion dollars in cash and property from forfeiture. Equitable Sharing Payments of Cash and Sale Proceeds by Recipient Agency, United States Justice Department (Jan. 2015), http://www.justice.gov/jmd/afp/02fundreport/2014affr/report1.htm. For examples of alleged police abuse there are various exposès including John Oliver’s Last Week Tonight dated October 5, 2014.

[14] Eric Blumenson and Eva Nilsen, The Drug War’s Hidden Economic Agenda, Public Broadcast Station (1998) http://www.pbs.org/wgbh/pages/frontline/shows/snitch/readings/hidden.html. While Scott would have likely received criminal charges if a growing operation was found, the story highlights the perverse incentive created by allocating seized assets directly to law enforcement agencies rather than a general fund.

[15] Id.

[16] Id.

[17] Bullock, supra note 5, at 16.

[18] Id.

[19] Attorney General Prohibits Federal Agency Adoptions of Assets Seized by State and Local Law Enforcement Agencies Except Where Needed to Protect Public Safety, United States Justice Department (Jan. 16, 2015), http://www.justice.gov/opa/pr/attorney-general-prohibits-federal-agency-adoptions-assets-seized-state-and-local-law. Equitable sharing also includes compensation from property obtained by joint operations where local law enforcement officials assisted federal law enforcement agencies.

[20] Bullock, supra note 5, at 25.

[21] Id.

[22] Id. For example, while New York civil forfeiture enforces the same legal burden on the government as federal law (preponderance of evidence), however, New York only allows the agency to retain 60 percent of the proceeds of forfeiture so New York law enforcement officials receive an additional 20% of the value of seized property by participating in equitable sharing as opposed to utilizing state civil forfeiture. Id. at 17 & 22.

[23] The Washington Post has found that over half of the $5.5 dollars forfeited to D.C. police were in amounts of less than $141. Scott Bullock, D.C. Police Plan for Future Seizure Proceeds Years in Advance in City Budget Documents, The Washington Post (Nov. 15, 2014), http://www.washingtonpost.com/investigations/dc-police-plan-for-future-seizure-proceeds-years-in-advance-in-city-budget-documents/2014/11/15/7025edd2-6b76-11e4-b053-65cea7903f2e_story.html.

[24] Attorney General Prohibits Federal Agency Adoptions of Assets Seized by State and Local Law Enforcement Agencies Except Where Needed to Protect Public Safety, United States Justice Department (Jan. 16, 2015), http://www.justice.gov/opa/pr/attorney-general-prohibits-federal-agency-adoptions-assets-seized-state-and-local-law.

[25] Id.

[26] Sen. Rand Paul Introduces the FAIR Act, United States Justice Department (Jan. 27, 2015), http://www.paul.senate.gov/?p=press_release&id=1279.

[27] Fifth Amendment Integrity Restoration Act of 2015, S. 255, 114th Cong. § 2 (2015).

[28] One example would be loosened drug laws, which would reduce the profit margin of the drug trade.

[29] Equitable sharing through adoption would also be formally removed from the statute. Id. at §3(b).

[30] Id. at § 7.

[31] Equitable Sharing Payments of Cash and Sale Proceeds by Recipient Agency, United States Justice Department (Jan. 2015), http://www.justice.gov/jmd/afp/02fundreport/2014affr/report1.htm.

[32] Id.

[33] Bullock supra note 5, 25.

[34] Criminal forfeiture does not pose the same potential for abuse as civil forfeiture; however any type of asset forfeiture will necessarily produce a conflict of interest when arresting officers directly benefit from a seizure.

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