Pubdate: Sat, 17 Jan 2015
Source: Washington Post (DC)
Copyright: 2015 The Washington Post Company
Authors: Robert O'Harrow Jr., Sari Horwitz and Steven Rich


Federal Law Had Netted Billions That Were Split With Local, State Police

Attorney General Eric H. Holder Jr. on Friday barred local and state 
police from using federal law to seize cash, cars and other property 
without warrants or criminal charges.

Holder's action represents the most sweeping check on police power to 
confiscate personal property since the seizures began three decades 
ago as part of the war on drugs.

Since 2008, thousands of local and state police agencies have made 
more than 55,000 seizures of cash and property worth $3 billion under 
a civil asset forfeiture program at the Justice Department called 
Equitable Sharing.

The program has enabled local and state police to make seizures and 
then have them "adopted" by federal agencies, which share in the 
proceeds. It allowed police departments and drug task forces to keep 
up to 80 percent of the proceeds of adopted seizures, with the rest 
going to federal agencies.

"With this new policy, effective immediately, the Justice Department 
is taking an important step to prohibit federal agency adoptions of 
state and local seizures, except for public safety reasons," Holder 
said in a statement.

Holder's decision allows limited exceptions, including illegal 
firearms, ammunition, explosives and property associated with child 
pornography, a small fraction of the total. This would eliminate 
virtually all cash and vehicle seizures made by local and state 
police from the program.

While police can continue to make seizures under their own state 
laws, Equitable Sharing was easy to use and required most of the 
proceeds from the seizures to go to local and state police agencies. 
Some states have higher standards of proof for forfeitures and some 
require seized proceeds to go into the general fund.

A Justice Department official, who spoke on the condition of 
anonymity to discuss the attorney general's motivation, said Holder 
"also believes that the new policy will eliminate any possibility 
that the adoption process might unintentionally incentivize 
unnecessary stops and seizures."

Holder's announcement drew praise from some groups who have denounced 
the seizures and criticism from some police organizations.

The decision follows a Washington Post investigation published in 
September that found that police have made cash seizures worth almost 
$2.5 billion from motorists and others without search warrants or 
indictments since the terrorist attacks of Sept. 11, 2001.

The Post found that local and state police routinely pulled over 
drivers for minor traffic infractions, pressed them to agree to 
warrantless searches and seized large amounts of cash without 
evidence of wrongdoing. The law allows such seizures and forces the 
owners to prove their property was legally acquired in order to get it back.

Police spent the seizure proceeds with little oversight, in some 
cases buying luxury cars, high-powered weapons and military-grade 
gear such as armored cars, according to an analysis of Justice 
Department data obtained through Freedom of Information Act requests.

News of the policy change surprised advocates who have for a long 
time unsuccessfully sought to reverse civil asset forfeiture laws, 
arguing that they undermine core American values, such as property 
rights and due process.

"It's high time we put an end to this damaging practice," said David 
Harris, a constitutional law scholar at the University of Pittsburgh. 
"It has been a civil-liberties debacle and a stain on American 
criminal justice."

Holder's action comes as members of both parties in Congress are 
working together to craft legislation to overhaul civil asset 
forfeiture. On Jan. 9, Sens. Charles E. Grassley (R-Iowa) and Mike 
Lee (R-Utah), and Reps. F. James Sensenbrenner Jr. (R-Wis.) and John 
Conyers Jr. (D-Mich.) signed a letter calling on Holder to end 
Equitable Sharing.

Grassley praised Holder's decision on Friday. "We're going to have a 
fairer justice system because of it," Grassley said. "The rule of law 
ought to protect innocent people, and civil asset forfeiture hurt a 
lot of people."

He said he planned to continue pressing for legislative reforms.

"I commend the department for this step and look forward to working 
with them on comprehensive forfeiture reform that protects Americans' 
property rights," Sensenbrenner said. "Equitable Sharing has become a 
tool too often used to bypass state law. "

The new policy could become one of the more notable pieces of 
Holder's legacy. Holder has already announced that he is leaving the 
department, and it is clear that he is taking steps to burnish his 
place in history. On Thursday, he pushed in a speech for better 
tracking of police use-of-force incidents.

But Friday's action is sure to engender its share of controversy.

The policy will touch police and local budgets in every state. Since 
2001, about 7,600 of the nation's 18,000 police departments and task 
forces have participated in Equitable Sharing. For hundreds of police 
departments and sheriff 's offices, the seizure proceeds accounted 
for 20 percent or more of their annual budgets in recent years, 
according to a Post analysis.

The action comes at a time when police are already angry about 
remarks that Holder and President Obama made after the police 
killings of unarmed black men in Ferguson, Mo., and New York City. 
Some have accused them of being "anti-cop."

"It seems like a continual barrage against police," said John W. 
Thompson, interim executive director of the National Sheriffs' 
Association. "I'm not saying there's no wrongdoing, but there is 
wrongdoing in everything."

Critics of the decision say that depriving departments of the 
proceeds from civil asset forfeitures will hurt legitimate efforts to 
fight crime, drug smuggling and terrorism.

Bill Johnson, executive director of the National Association of 
Police Organizations, said, "There is some grave concern about the 
possible loss of significant funding while local police and state 
police are being asked to do more and more each year."

Over the past decade, thousands of people have had to fight the 
government to get their cash and property back, often hiring lawyers 
and spending more than a year in the process, The Post found. Many of 
them were people of color and immigrants swept up in police dragnets 
on the nation's highways aimed at stopping drug dealers, money 
launderers and terrorists.

That includes people such as Mandrel Stuart, who was stopped in 2012 
by Fairfax County police, detained without charges, handcuffed and 
stripped of $17,550 in cash that was to be used for equipment and 
supplies for his barbecue restaurant in Staunton, Va. He eventually 
hired a lawyer, and a jury gave him his money back in 2013. But he 
lost his restaurant while fighting the government, because he had no 
working capital.

"A lot of people won't be harassed the way they are harassing them 
now," Stuart said Friday after he heard about Holder's action. "It's 
some justice at last on our side."

Civil asset forfeiture is one of the most powerful - and unusual - 
law enforcement tools. Police do not need to prove a crime to use it, 
because it is a civil action against an object, such as currency or a 
car, rather than a person.

As a consequence, protections common in criminal law do not apply. In 
fact, owners who want to recover their cash or property generally 
must show it is theirs and demonstrate it is not tied to crime.

Forfeiture has its basis in British admiralty law, but it became a 
part of the fight against drugs in the United States beginning in 
1970, when Congress allowed police to seize aircraft, boats and other 
property used to transport narcotics or bought by drug lords with 
ill-gotten gains.

In the 1980s, the law was expanded to include cash. About the same 
time, the Justice Department created its Asset Forfeiture Program and 
began allowing federal agencies to adopt seizures made by state and 
local authorities. Those changes led to a massive increase in money 
deposited into the federal forfeitures fund as seizures by local and 
state police surged. Allegations of police abuses also increased.

Searing reports by the Orlando Sentinel and other newspapers about 
abuses spurred Congress to pass the Civil Asset Forfeiture Reform Act 
in 2000. But a key change - ending the sharing of seizure proceeds 
between local police and federal agencies - was cut from the bill 
after fierce opposition from police and prosecutors. Some lawmakers 
called the sharing of money a "perverse incentive" for overly 
aggressive police tactics.

After Sept. 11, 2001, the use of the asset forfeiture law and the 
Equitable Sharing Program rose to new heights as federal authorities 
called on local, county and state police to help keep watch on the 
nation's highways, not only for drug smugglers but also for terrorists.

The Departments of Justice and Homeland Security paid private firms 
millions to train local and state officers in the techniques of an 
aggressive brand of policing known as "highway interdiction." That 
training, developed by the firms, included methods for ferreting out 
suspicious drivers and coaxing them into granting warrantless 
searches of vehicles, according to internal company training 
documents obtained by The Post. The files emphasized the importance 
of targeting cash.

The federal government also encouraged police to collect and share 
intelligence about drivers. One training firm started a private 
intelligence system called Black Asphalt that enabled thousands of 
police to share tips about drivers across state lines and funnel raw 
reports about drivers to federal authorities.

Civil asset forfeiture has become one of the few public policy and 
social issues that united activists and lawmakers across the 
political spectrum.

After The Post series, John Yoder and Brad Cates, two directors of 
the Justice Department's asset forfeiture office under President 
Ronald Reagan, said the program should end. In an opinion piece, they 
said the program began with good intentions. "Over time, however, the 
tactic has turned into an evil itself, with the corruption it 
engendered among government and law enforcement coming to clearly 
outweigh any benefits."

The Institute for Justice and other libertarian-leaning groups teamed 
up with the American Civil Liberties Union and left-leaning groups to 
press for changes in the wake of The Post's investigation.

"This is a profoundly important and path-breaking change in the 
ability of the government to take property of Americans," said Scott 
Bullock, a senior attorney at the Institute for Justice, which 
produced a study about civil asset forfeiture five years ago called 
"Policing for Profit: The Abuse of Civil Asset Forfeiture."

In recent months, Grassley, the new chairman of the Senate Judiciary 
Committee, and Sen. Patrick J. Leahy ( Vt.), the panel's ranking 
Democrat, joined the effort, along with Sensenbrenner and others.

Holder said seizure adoptions will continue to be employed by local 
and federal authorities, but only in limited circumstances when 
public safety is at risk and where local and federal authorities are 
collaborating in cases clearly involving criminal activity.

Most of the money and property taken under Equitable Sharing since 
2008 - $3 billion out of $5.3 billon - was not seized in 
collaboration with federal authorities, The Post's analysis found.

In announcing the new Justice Department policy Friday, Holder said 
there is also less need for federal seizure adoptions. In the 1980s, 
when the policies took effect, few states gave police the authority 
to make civil seizures and forfeit the assets of criminals in the way 
that federal law allowed.

"Today, however, every state has either criminal or civil forfeiture 
laws, making the federal adoption process less necessary," Holder's 
statement said. "Indeed, adoptions currently constitute a very small 
slice of the federal asset forfeiture program. "

Some police departments have shown an apparent preference for federal 
law over state laws. Equitable Sharing allowed many departments to 
make or benefit from seizures in ways they could not have under state 
law. The program required the seizure proceeds to go back to the 
departments, while some state asset forfeiture programs mandate that 
the money go into general funds.

The Treasury Department is also changing its asset forfeiture program 
to follow the same guideline included in Holder's order, the statement said.

Federal agencies make larger seizures of cash and property through 
avenues other than Equitable Sharing, typically in cases involving 
defendants ranging from drug cartel kingpins to Bernard L. Madoff, 
whose fraud case has resulted in more than $9 billion in forfeitures 
in recent years.

Those programs are not affected by the changes to Equitable Sharing, 
but Holder also said the new policy is the first step in a 
"comprehensive review" of civil forfeiture in general.

Justice Department officials noted that civil asset forfeiture has 
hurt criminals and their organizations. It also has enabled the 
government to refund money to crime victims - about $4 billion over 
the past 15 years.

"Asset forfeiture remains a critical law enforcement tool when used 
appropriately - providing unique means to go after criminal and even 
terrorist organizations," Holder said. "This new policy will ensure 
that these authorities can continue to be used to take the profit out 
of crime and return assets to victims, while safeguarding civil liberties."
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MAP posted-by: Jay Bergstrom