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.

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Criminal Forfeiture is Taking the “Just” out of Justice: Kaley v. United States

Author: Cameron Downer, Associate Member, University of Cincinnati Law Review

On February 25, 2014, the United States Supreme Court in Kaley v. United States held that defendants are not constitutionally entitled to a pre-trial hearing to challenge a grand jury’s probable cause determination that they committed a crime. This decision means a grand jury determination is an appropriate trigger to allow forfeiture of the defendant’s property under 21 U.S.C. §853(e).[1] Justice Kagan, in her majority opinion, reasoned that since a grand jury indictment may lead to the pre-trial restraining of persons, it similarly has the power to deprive a person of his assets. Therefore, the grand jury may deprive someone of both liberty and property, even if that property is used to pay for the person’s attorney.

Although the Supreme Court hopes to prevent pitting judges against grand juries, the majority’s opinion in Kaley opens the door for prosecutorial abuse. Pre-trial forfeiture can now be used as a weapon by the prosecution to deprive a defendant of his counsel, without challenge. Considering a grand jury indictment is a mere “rubber stamp” in the perspective of the prosecution, the prosecution now has unfettered discretion to deprive a defendant of counsel, thus unfairly increasing the chances of successful prosecution.[2]

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