DOJ Helping Law Enforcement Agencies Fight Back Against Asset Forfeiture Reform

from the the-public's-best-interest-still-at-bottom-of-all-lists dept

At the beginning of this year, Attorney General Eric Holder attempted to close an exploitable loophole in asset forfeiture laws. State and local law enforcement agencies often sought federal “adoption” of seizures in order to route around statutes that dumped assets into general funds or otherwise limited them from directly profiting from these seizures. By partnering with federal agencies, local law enforcement often saw bigger payouts than with strictly local forfeitures.

The loophole closure still had its own loopholes (seizures for “public safety,” various criminal acts), but it did make a small attempt to straighten out some really perverted incentives. But deep down inside, it appears the DOJ isn’t really behind true forfeiture reform. In fact, it seems to be urging local law enforcement to fight these efforts by pointing out just how much money these agencies will “lose” if they can’t buddy up with Uncle Sam.

A cache of documents uncovered by the Institute for Justice today demonstrate that federal law enforcement officials in the Departments of Justice (DOJ) and Treasury are collaborating with local law enforcement organizations in California to undermine efforts to reform the state’s civil forfeiture laws. The California District Attorneys Association is circulating a set of emails from officials with the DOJ and Treasury indicating that the federal government would disqualify the state from receiving funds from the federal Equitable Sharing Program if it passes the pending reforms. The documents also reveal that the DOJ has already disqualified New Mexico from participating in the program, following passage of a sweeping civil forfeiture reform bill this spring.

The DOJ’s insertion into the legislative process begins with talking points delivered in emails that stress the amount of money agencies will be “losing” if they’re no longer allowed to federalize seizures. The documents show members of the Treasury Department affirming that California’s reform will “force” the DOJ to cut state law enforcement agencies out of the loop — supposedly because the Mother Ship can’t secure convictions fast enough.

Citing “resources, desire, or technical capability,” Treasury Executive Office for Asset Forfeiture Legal Counsel Melissa Nasrah wrote in an email to Santa Barbara Senior Deputy District Attorney Lee Carter, “I highly doubt our federal agencies can figure out whether a conviction occurred in any timely manner,” and “it seems the legislation, in effect, takes decision-making authority away from Treasury. Accordingly, I think I would still advise our policy officials here that it would be prudent to not share with CA agencies should this law be passed.”

Sure enough, the “warnings” from the feds are echoed in a letter from the California District Attorneys’ Association in opposition of the bill. The association expresses its abject dismay at the fact that law enforcement agencies might actually have to secure convictions to hold onto seized assets. According to the CDAA, asset forfeiture without accompanying convictions is a must because indictments and jail time alone aren’t punitive enough.

The current version of the bill would essentially deny every law enforcement agency in California direct receipt of any forfeited assets. California’s asset forfeiture law will be changed for the worse, and it will cripple the ability of law enforcement to forfeit assets from drug dealers when arrest and incarceration is an incomplete strategy for combatting drug trafficking.

The Treasury Department, for its part, argues that a conviction requirement would prevent the DOJ from a) being fair and b) performing the studious oversight that has prevented asset forfeiture from devolving into cops going shopping for stuff they want.

A transfer to a state-controlled fund would not be a permissible use of funds, especially when that central fund would redistribute money to all law enforcement agencies in the state, regardless of their eligibility or participation in our program.

All participating agencies must report their expenditures to DOJ at the end of their fiscal year. As you are aware, there are many law enforcement items that cannot be purchased with equitably shared funds, and some are fully prohibited both by policy and executive order. lf a participating agency turns its federally shared funds over to the State of California under those proposed amendments, DOJ can no longer provide appropriate oversight over final expenditures.

The CDAA goes on to complain that the proposed reforms would reverse the one-way screwing it has become accustomed to.

The vast majority of civil narcotic asset forfeiture cases in California resolve by default or settlement. Providing attorney fees to the party that “substantially prevails” could result in attorney fees being available when the People return 50 percent or more of the seizure in a settlement. This would be an unprecedented one-way benefit for a civil litigant, and a huge additional cost to prosecuting forfeitures. Further, in appropriate cases and under existing civil law, attorney fees are already available to claimants in a forfeiture action.

Note the use of “the People” to portray this as robbing the public of the benefits of seized funds when, in actuality, it’s usually just the theft of funds from (lowercase) people.

It’s easy to see why California law enforcement is panicking. There’s almost $84 million at stake, if the CDAA’s stats are accurate. These agencies want to control how they get these funds, what they have to do to hold onto them and how they’re disbursed. Anything short of the status quo is just a win for drug dealers. This is hardly unexpected behavior. Nothing makes government agencies more defensive than furtive movements in the direction of their wallets.

That the DOJ has decided to pile on — despite its nominal reform efforts — is also less than shocking. After all, it takes a cut from every “adopted” investigation — all the while enabling local entities to bypass statutory safeguards meant to keep the abuse of civil forfeiture to a minimum.

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Comments on “DOJ Helping Law Enforcement Agencies Fight Back Against Asset Forfeiture Reform”

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That One Guy (profile) says:

Robbing someone with a gun is for idiots, smart criminals use a badge

That ‘asset forfeiture’/armed robbery at badge-point is considered a source of revenue by those engaged in it shows just how bad an idea it is.

The massive conflict of interest in allowing those that make the seizures to directly profit from them is something that should never have been allowed, and the idea that it took this long to even begin to pass laws that at least made it so that what was stolen required a conviction to be kept, or that distributed the resulting funds to the state in general, rather than the ones making the seizures directly is absurd.

Anonymous Coward says:

Imagine, requiring a conviction, actually being found guilty, before keeping seized assests. How is that unjust?

I also notice they keep referring to drug cases but assest forfeiture I thought was part of any criminal case now.

Reducing funds to state law enforcemet if reform bills are passed does become a threat since law enforcement usually have little to do with legislature activies and elections … until now. That’s crossing a line. Isn’t there something against using federal dollars to lobby?

Justme says:

Have some fun. . .

Traveling with a large amount of cash? Carry it in an envelope marked Campaign contribution for senator _______. Then any seizure is a First Amendment violation of your freedom of speech. Don’t know that it will save your money, but it certainly makes it a less attractive target for seizure!

Asset Forfeiture and Citizen United, who said two wrong’s don’t make a right.

Anonymous Coward says:

“In fact, it seems to be urging local law enforcement to fight these efforts by pointing out just how much money these agencies will “lose” if they can’t buddy up with Uncle Sam. “

We shouldn’t stop theft because imagine all that money the thieves will lose if we did. No, can’t have that.

The entire point of putting more restrictions on asset forfeitures is so that you won’t be so quick to take something that you shouldn’t be taking. That you will lose so much if these restrictions were in place is an admission to the fact that you take a lot of assets that you shouldn’t be taking.

Anonymous Coward says:

Bring on the clowns

A quote from a recent comment on the DOJ: “This is like a real life circus clown car disgorging ADA’s with warrants and swat teams, but clowns non the less. Like a pack of blood hounds tracking a bitch in heat, no thought involved, just raw pheromones. “We got them now I’m going to fuck that bitch”. The only difference is they have now invited the local law into the car, great more clowns. A better way to do an end run around a pesky law, leave to the FEDs “your laws mean NOTHING HA”!

Anonymous Coward says:

Karmic justice ftw

Just for once, I’d like the greedy personal within the DOJ who take the most from seizures to experience a karmic groundhog day. One in where they go through an educational hell, by having every greedy choice go wrong in the most financially bankrupting manner possible.

Che.. to bad karmic justice isn’t a real thing, but then again who knows who or what you have to answer to when you die?

Mypasswordbroke says:

Asset forfeiture would be a powerful tool if they used it properly. But they don’t. The level of corruption surrounding this OBVIOUS problem is astounding.

Asset forfeitures need to go into a general fund. Police departments should NEVER profit from them directly.

It should be handled like fire department billing (ambulance transports, etc.). In most places, that money goes directly back to a general fund that the department has no control over or direct access to.

Why should cops be any different? This has always left me shaking my head in disbelief.

GEMont (profile) says:

History Regurgitates...

And the Sherriff of Nottingham, once again dons the attire of the secretly incarcerated Robin of Hood, for another romp through the houses of the poor, in search of goodly gains to share with his Tariff Men, over warm wenches and warmer mead.

If the MAFIA had infiltrated the Treasury Department and the US Federal Government and all the Police Departments, this whole scenario would make perfect sense.

Wait a minute….

GEMont (profile) says:

Re: Riddle me this. .

Disclaimer: Those who are still dreaming the American Dream may wish to skip this post.


Most people do not realize that the War on Drugs, is actually a legal declaration of war on the US public.

Drug dealers and users ARE American citizens, and are thus, unidentified enemy combatants in a fully declared legal war, which through that declaration bestows special legal powers upon the federal government and its agents, that assist them in carrying out the necessities of that war.

Because the actual Dealer and User Citizens are unknown, it became necessary to secretly declare war on ALL US citizens – read; “Guilty until proven Not Guilty” – and thus all of the Constitutional Safeguards that applied to the protection of US citizens from unreasonable search and seizure by its government and their agents, had to be re-interpreted for the War Effort, to allow the new rules of the Drug War to become legalized actions.

As with any war, once caught, enemy combatants can be held indefinitely without trial being held, or charges being laid and are automatically stripped of any civil rights they might have and all of their belongings automatically become spoils of war.

In the War on Drugs, all US citizens have become, legally, potential “adversaries” and thus their civil rights become strippable or removable, at the whim of the government or its agents, upon suspicion or proof of their participation in the use or sale of drugs or drug related material, or the use of drug proceeds, or the use or possession of material which was purchased using drug related proceeds.

So you see, its all legal and above board that the US Federal Government and its agents have the legal right to strip any US citizen of his or her civil rights and property and treat them like enemy combatants in a war zone, because they are all legally designated as potential enemy combatants in a war zone, pending recognition of their participation.

BTW – this exact same legal situation exists in all of the nations participating in the War on Drugs.

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