By Ilya Shapiro and Randal Meye
When Attorney General Loretta Lynch decided late last year that the Justice Department would end the federal civil asset forfeiture program, criminal justice reform advocates proclaimed it a “significant deal.”
But late last month, less than four months later, the Obama administration reversed itself and reinstated the Asset Forfeiture Fund’s Orwellian “equitable sharing” program.
That’s a shame, particularly when the only supporters of the policy are the law enforcement agencies that directly benefit from it. Indeed, the federal program’s combined annual revenue has grown more than 1,000 percent in the last 15 years, filling the coffers of federal, state and local police departments.
Civil forfeiture allows police to seize private assets, often without any proof of wrongdoing, and often the agency doing the seizing gets to keep all or most of the proceeds. The federal civil forfeiture program was passed in 1984 as part of President Ronald Reagan’s Comprehensive Crime Control Act. It was intended for use against major drug traffickers and cartels.
Now police use the “adoptive forfeiture” aspect of the law to avoid the higher burdens of proof and other restrictions on asset forfeiture that states have been enacting. If the underlying actions that state officials are investigating also constitute a federal crime — like simple possession of marijuana — then the relevant assets may be forfeited to the feds.
It thus undermines state governments’ ability to control their own police forces. While many states ensure that seized assets go to the general treasury — or for special funds, like education — the federal program requires that they be used solely for law enforcement.
Attempting to get back their money or property often forces owners into a legal labyrinth designed to favor law enforcement. In one recent case in California, a DEA agent seized $16,000 from Joseph Rivers as he was traveling by train to start a music career in Los Angeles. The only suspicious thing about Rivers was that he was traveling a long way on a one-way ticket with a lot of cash.
In October, after nearly half a year of legal wrangling, the government won its legal battle for Rivers’ money — and he wasn’t even issued a ticket.
Ending this practice administratively (again) would go a long way to stopping “policing for profit” and cure obvious injustices at low political cost. Of course, the Justice Department made clear by reinstating the program that the only way to end federal asset forfeiture would be the same way it was brought into the world — federal law.
The good news is that even a gridlocked Congress could do it. One easy way would be to do what it does best: pilfer a federal spending program.
When the Justice Department suspended its program in December, it noted that the Consolidated Appropriations Act of 2016 and the Bipartisan Budget Act of 2015 had “reduced Assets Forfeiture Program funds by $1.2 billion.”
It wasn’t criminal justice concerns that dictated the change, but rather that “those rescissions threatened the financial solvency of the Assets Forfeiture Fund.” DOJ promised that it would “take all appropriate and necessary measures” to “reinstate sharing distributions as soon as practical and financially feasible.”
By hamstringing the fund, the GOP-led Congress accomplished a significant victory on a criminal justice issue on which both sides of the aisle agree. Now, Republicans can repeat their past success and defund the program. This move would tie the Justice Department’s hands for the time being while meaningful reform can be considered.
Congress — this or the one elected in November — also could consider meaningful reform to the process of asset forfeiture and the lax federal laws that encourage states to join the program. Permanently reforming it and putting serious restraints on executive officials ultimately rests with the body that passed the law in the first place.
Congress should act. It’s time to reform a tool that has done far more harm to the average citizen, and state freedom, than any benefit to any criminal justice or law enforcement interests — or repeal it altogether.
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute, where Randal Meyer is a legal associate.
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