The Fine Print in AG Holder's Forfeiture Directive

I was among those touting Attorney General Eric Holder's press release last week which appeared to be a sea change in federal civil asset forfeiture policy. Next time I'll wait to see the fine print before endorsing a prosecutorial "reform", rather than rely on a press release.

A signed copy of the actual directive to U.S. Attorneys is now available here. It has some major ambiguities and exceptions that weren't apparent in the press release. [More...]

This order does not apply to (1) seizures by state and local authorities working together with federal authorities in a joint task force; (2) seizures by state and local authorities that are the result of joint federal-state investigations or that are coordinated with federal authorities as part of ongoing federal investigations; or (3) seizures pursuant to federal seizure warrants, obtained from federal courts to take custody of assets originally seized under state law. This Order also does not affect the ability of state and local agencies to pursue the forfeiture of assets pursuant to their respective state laws.

The directive also states it does not apply to cases already in the pipeline.

This policy is effective immediately. For any asset that already has been seized and for which
adoption already has been requested and accepted by the Department as of the date of the issuance
of this policy, the adoption process may continue pursuant to the prior adoption policy, provided
that it comports strictly with federal law and the requirements of the prior policy.

Here's a map of the almost 300 joint task forces across the country. There are more than 2,500 state and local officers working with them.

State and local interdiction cops are on highways all over America making subjective stops based on hunches. They ask for consent to search without any probable cause. Too many people say yes, not understanding they can refuse. That's the last they see of their money, even if criminal charges are never brought. Holder's new policy, in exempting seizures by local cops based on their association with a joint state-federal task force, is unlikely to cure the problem.

For one view on why this is a problem, check out this post by the Truth and Justice blog. For more on the abuses, here's a Washington Post series from September, Stop and Seize.

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    So it sounds like literal highway robbery (5.00 / 2) (#1)
    by ruffian on Tue Jan 20, 2015 at 09:04:44 AM EST
    is still allowed if the Feds are involved. If the administration really thinks this is wrong, why do they exclude themselves?

    Just more smoke and mirrors.

    Nothing like building in enough loopholes, (5.00 / 2) (#2)
    by Anne on Tue Jan 20, 2015 at 09:12:02 AM EST
    and providing a road map for making use of them, to render this entire exercise useless.

    ::rolling eyes::

    My biggest, not only, (5.00 / 3) (#3)
    by Reconstructionist on Tue Jan 20, 2015 at 09:32:34 AM EST
      problem with seizure/forfeiture laws is how they tend to pervert both the allocation of law enforcement resources and what authorities consider acceptable outcomes.

      As to the former because law enforcement agencies get financially rewarded by keeping a large portion of forfeited assets, this causes agencies (as rational economic actors) to allocate resources to the types of cases which can result in the forfeiture of assets at the expense of other types of cases. If someone breaks into my home and steals $20K of my property, I will get any property which might be recovered as a result of the police work. The only reward for the cops is the satisfaction of a job well done. If the police catch a bad guy with $20K of "drug money" they are likely to get to buy some new toys and/or have more cash with which to do controlled buys and set up more folks with more money from which the cops can directly benefit.  This might help explain why the cops will sometimes expend dozens or even  hundreds of man hours to a $20K drug case but only take a statement and file a perfunctory report when my stuff is taken.

      As for outcomes, it is not unheard of for law enforcement to agree to "settle" for keeping a "bad guy's" property and forego potential charges if the person agrees to waive his right to contest forfeiture. Dropping felonies to misdemeanors, agreeing not to file  any criminal charges  or even dismissing outright already filed criminal cases does occur. Conversely, after a seizure but prior to forfeiture, people can be made aware that things will be made much more difficult for them if they fight. An argument can be made that law enforcement is sometimes more concerned with money than "justice."


    Still, nobody seems to understand (5.00 / 1) (#4)
    by Militarytracy on Tue Jan 20, 2015 at 09:52:49 AM EST
    We will get what is incentivized.

    Yes - where is the motivation to actually (5.00 / 2) (#6)
    by ruffian on Tue Jan 20, 2015 at 11:45:32 AM EST
    prevent or stop crime, if the police are getting their income from it too? Seems like they are a member of the crime syndicate to me.

    Why stop crime ? (5.00 / 2) (#11)
    by FlJoe on Tue Jan 20, 2015 at 05:25:16 PM EST
    Crime pays for the police, jurisdictions and  the quickly growing privatized prison industry. Steal the money up front if you can, wring them through the justice system for the rest and throw them in jail so the 1% can get their cut on the back end. All on the taxpayers dime, quite a racket

    It's a perfect business model for our modern capitalist police state.


    You just explained why (none / 0) (#9)
    by Chuck0 on Tue Jan 20, 2015 at 01:02:34 PM EST
    law enforcement is so opposed to any kind of legalization of marijuana or any other drug. They don't give a hoot about public safety. If MJ is legal, the spigot get turned off. It's exactly why bootleggers opposed the repeal of Prohibition.

    Why do you think badge adorned highwaymen in Tennessee patrol the WEST bound side of I-40 and not the eastbound? They don't care if drugs get through. They want the money on the return trip. A local Nashville TV station did great expose on this.


    In my city (state), MM is legal (5.00 / 2) (#10)
    by nycstray on Tue Jan 20, 2015 at 04:11:39 PM EST
    but it didn't stop the mayor and former police chief from working with the feds and shutting down shops. And yes, taking everything. This happened a couple months after we the people voted for a tax on MM that our broke a** city desperately needed. The first quarter was bringing in some nice dollars for our streets and schools . . .  idiots.

    John Oliver's show, (5.00 / 1) (#5)
    by lentinel on Tue Jan 20, 2015 at 11:20:07 AM EST
     "Last Week Tonight", had an excellent report on civil forfeiture some months ago.

    Here's the link.

    Apparently, little or nothing will change.

    I am shocked, shocked I tell you... (none / 0) (#7)
    by Mr Natural on Tue Jan 20, 2015 at 12:02:34 PM EST
    to find fine print in a legal document.

    Anderson Cooper did a story on this (none / 0) (#13)
    by Militarytracy on Wed Jan 21, 2015 at 10:08:25 PM EST
    Tonight.  Made a point that state and local law enforcement can still empower themselves to confiscate our property, and are still doing so.