Attorney General Holder – Brenda Grantland

What you need to know about AG Sessions’ new forfeiture policy

2017-07-232017-07-23 Brenda Grantland 1 Comment

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On July 19, 2017, Attorney General Jeff Sessions announced a new forfeiture policy regarding federal adoptions, Order No. 3946-2017 and Policy Directive 17-1: “Policy Guidance on the Attorney General’s Order on Federal Adoption and Forfeiture of Property Seized by State and Local Law Enforcement Agencies.”

To make sense of this order and what it does you have to put aside what you read in the newspaper articles interpreting the press release, and read the order and policy directive themselves. (Download the order and related documents using the download buttons above.)

The one-page order is signed by Sessions. The only concrete change announced in the order is its repeal of two Obama era Attorney General policy orders issued by former Attorney General Eric Holder. This is the point most of the articles have gone ballistic on. As I explain below, that repeal is no big deal.

The details of the policy changes are set out in Policy Directive 17-1, signed by Deborah Connor, Acting Chief of the Money Laundering and Asset Recovery Section of the Justice Department. It is only three pages long, but contains very specific procedures that will make major changes for the better.

On the same day, the DOJ issued a press release containing Sessions’ remarks – three pages of the usual platitudes about the virtues of asset forfeiture. Sessions’ remarks are worth dissecting, which I will do later, but let’s look at the details of the policy change first.

What federal adoption means

For those who don’t know, “federal adoption” has nothing to do with giving orphans a forever home. It is a Justice Department program, created by statute, that rewards state and local police for seizing property from citizens and turning it over to the feds for forfeiture under federal law, by giving the local police a kickback (“equitable sharing”) of up to 80% of the proceeds of the forfeiture case. See 28 U.S.C. Sec. 524(c). These state and local cops could just use their states’ forfeiture laws to forfeit property, but many prefer federal adoption to get around their state’s forfeiture laws which are more protective of property owners.

When a case is federally adopted, the forfeiture is processed in federal court, under federal forfeiture law, using federal standards, even if the forfeiture would be illegal under state law. Forfeiture opponents argue that allowing the feds to subvert local and state police into disregarding the law of their own states and instead seize property for forfeiture under federal law — by offering them up to 80% of the proceeds of the federal forfeiture.

What the policy order and directive do

1. Repeals “Obama era policy order” limiting federal adoption

The most seemingly dramatic feature of Sessions’ order is its repeal of Attorney General Order No. 3488-2015 (1/16/2015 – Holder order limiting federal adoption) and No. 3485-2015 (1/12/2015). I have not been able to find Attorney General Order No. 3485-2015. The only mention of it anywhere on line is this order repealing it.

The policy orders that Sessions repealed were issued by outgoing Attorney General Eric Holder in January 2015. Order No. 3488-2015 set specific limitations on the federal adoption of state and local police seizures. As I explained in a previous blog, Holder’s order did not do much to curb federal adoption. See Attorney General Holder’s Asset Forfeiture Policy Limiting Federal Adoption Will Not Stop the Abuses.

Holder’s policy order contained built-in loopholes that told the police how to get around the new policy. All they had to do was put a federal agent on their task force, or get a federal judge to issue a federal seizure warrant for the property and they were back to business as usual.

Less than two weeks after my blog predicting the Holder order would have little or no effect, Justice Department spokespeople admitted it would not have a substantial effect. See the HuffPost article Justice Department Budget Projects Some Asset Forfeiture Payments Will Rise Despite Reforms. The Holder order did not even reduce federal adoption payments, as the DOJ admitted in the HuffPost article.

2. Review by a federal agency lawyer before agreeing to a federal adoption

Policy Directive 17-1 requires that the facts of each seizure be reviewed by the adopting agency’s legal counsel before agreeing to accept the federal adoption.

“To ensure that adoptions involve property lawfully seized, legal counsel at the federal agency adopting the seized property must continue to review all seizures for compliance with law, especially seizures made pursuant to an exception to the Fourth Amendment’s warrant requirement.” Policy Directive 17-1 p. 1-2.

The directive tells the agencies to revise the forms used to request federal adoption and require the seizing cops to provide enough information to determine if there was probable cause for the seizure. The cops are also required to state on the revised form whether a turnover order was obtained, if required by state law. Policy Directive p. 2. (Only a few states have statutes requiring local police to get a turnover order from a state court judge before they can turn over property they seized to the feds for federal adoption.)

These new procedures, if actually followed, will weed out many illegal roadside forfeiture trap seizures at a very crucial time — before sending notice to claimants requiring them to file a claim within 30 days. All of the cases claimants lost by default were lost during that crucial period.

Although there was eventually a review by an Assistant U.S. Attorney before filing a forfeiture complaint in court — which would usually occur 90 days later — that review only occurs after a claimant files a claim. If the claimant defaulted before that point, there would never be a review for probable cause.

3. Additional screening procedures for seizures of $10,000 or less

The vast majority of the highway forfeiture trap cases are these smaller dollar value seizures.

They target travelers on the interstate highways, particularly those with out of state tags, and minorities. They are pulled over for a minor traffic infraction or on the ruse that they fit a vague drug courier profile. In most of those cases, little or no drugs are found and no one is arrested, yet after a search, they seize all of the cash the travelers are carrying, saying it is suspected drug proceeds.

Under the policy directive, when cash totaling $10,000 or less is seized, the seizure can be adopted only if

(1) the seizure was pursuant to a state warrant,
(2) it was seized incident to an arrest for a forfeiture triggering offense,
(3) it was seized at the same time as contraband was seized “relevant to the forfeiture,” or
(4) if the person from whom it was seized admits it was crime proceeds or intended for use to commit a crime.

Policy Directive 17-1 p. 2. If a federal agency wants to adopt a seizure that does not fit into one of those categories they have to get the approval of the U.S. Attorney’s Office first.

This is an excellent reform! Let’s hope they actually follow this policy.

Roadside forfeiture traps rake in a huge number of small dollar value seizures — with values too small for the property owner to hire a lawyer to defend. Many give up instead of filing a claim because hiring a lawyer would cost more than the value of the property. Sessions claimed that “over the last decade, four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court.” That is probably true, but it is not because those people were all guilty, as Sessions suggested. Many defaulted because it was not cost effective to litigate in federal court over these small dollar amounts.

When the feds adopt a state or local police seizure, all money seized (and most other personal property) is sent through the administrative forfeiture process. The adopting agency sends out a notice to the property owner and they have to send in a claim within 30 days or they are in default and automatically lose their property.

When the property is forfeited by default in the administrative process no judge ever reviews the legality of the seizure. The policy directive suggests that a lawyer from the agency would review the case to determine the legality of the seizure before agreeing to adopt it (“the federal agency … must continue to review all seizures for compliance with the law….”) — but if they were already doing this, why would Sessions issue a policy order requiring it?

Also, it appears that the previous forms the local cops filled out to request adoption wouldn’t have had enough information for the federal agency to determine whether the seizure was valid.

For decades these small dollar value highway forfeiture trap cases have been nuisance cases for claimants. Now they are nuisance cases for the government!

Agency lawyers will have to plow through thousands of cases and weed out bogus seizures that they would have otherwise won by default. I can imagine agency lawyers will perform triage and drop cases that wouldn’t be cost effective to prosecute. Many of those people who would previously have lost by default will get their money back.

4. Additional scrutiny of seizures of real property

The Policy Directive warns officials to “proceed with caution” when deciding whether to waive the Department’s net equity thresholds for real estate, and in taking cases where real estate is owned by innocent people.

Their concern many not be altruistic as much as economic. Real estate can’t be put through the administrative forfeiture process where claimants so often default because it is not cost effective to hire a lawyer. The government has to work to forfeit real estate. It’s hard for the government to make profits off forfeiture if the litigation involves real estate with low equity when innocent owners and lienholders will have to be paid off.

5. Expediting the forfeiture process by 45 days

The statutes give the government 90 days after seizure to commence the administrative forfeiture process by sending notice. Sessions’ order shortens that time to 45 days.

This is not a big deal for claimants. In cases that are contested, after the claimant files a claim, the case goes to federal court where it bogs down for several years.

Because the new 45 deadline is just a policy deadline, the claimant cannot enforce it and nothing happens if they miss it. The 90 day deadline is statutory, and missing it has consequences for the government — including dismissal of the case and return of the property. I suspect that the 45 day deadline is to hurry things along so the feds don’t miss the 90 day deadline.

Other forces have begun to curtail the federal adoption program

Actually “equitable sharing” under the federal adoption program has been curtailed in recent years, but not by policy changes at the Department of Justice.

Federal legislation

A few years ago Congress put a rider in the budget appropriation bill prohibiting the DOJ from spending money from its budget on federal adoption. When the police lobby went ballistic about losing their federal sharing revenue, the DOJ found a way to get around it. They increased forfeitures in federal agency originated cases and used that money to fund the state and local cops who were feeding them forfeiture cases.

Congress has since imposed another limit on the federal adoption program which no Attorney General can override. In a budget appropriations rider Congress prohibited the DOJ from spending any money from its budget to thwart the implementation of state medical marijuana laws:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014). The Ninth Circuit interpreted this statute to preclude the feds from prosecuting medical marijuana providers who were in full compliance with state law legalizing and regulation medical marjuana. United States v. McIntosh, 833 F.3d 1063 (2016). That limit on prosecutions would bar federal forfeiture prosecutions as well.

State legislation restricting federal adoption

Federal adoption will also likely decrease substantially because state legislatures have been passing laws to curtail federal adoption. Unhappy with the feds’ use of federal adoption to lure state and local police into disregarding limitations on state forfeiture laws, several states have passed legislation stopping the state and local cops from receiving equitable sharing revenue for federal adoption cases that conflict with state laws.

According to a National Review article, thirteen states have passed state forfeiture reform legislation curbing federal adoptions.

California’s forfeiture reform statute, SB 443, effective January 1, 2017, bars any police force from accepting revenue from federal adoptions unless they can prove there was a conviction in the related criminal case – that is, if a criminal conviction is required under state law. Under the new law, a criminal conviction is required in a related criminal case in order to forfeit anything except cash and negotiable instruments totaling $40,000 or more. This provision was obviously meant to curb the “highway robbery” type forfeiture trap, where local cops stop travelers on the highway for minor traffic infractions (or nothing at all) and seize their cash on the ruse that it is drug proceeds or intended for use to purchase drugs – even though they found no drugs. They could never get a criminal conviction in such a case because the burden of proof is beyond a reasonable doubt. In most of these highway forfeiture trap cases they didn’t even arrest anyone, yet their money was subjected to the civil forfeiture process.

This will likely be a very effective way to curb federal adoption. Would local police go to the trouble of mounting these highway forfeiture traps just to turn the money over to the feds and get nothing in return? This may force them to enforce their own state forfeiture laws instead!

A word or two about the accompanying press release

If you wonder how journalists could so poorly understand what Sessions order and the policy directive do, I believe it is because they only read the DOJ press release. The press release is comprised primarily of Session’ remarks, which are loaded with pro-forfeiture propaganda, such as his repeated claim that civil forfeiture targets “organized crime.” If it were “organized crime” why wouldn’t they be going after them criminally, where they could just use criminal forfeiture?

This passage is a doozy:

“When I was in the Senate, I worked with Senator Schumer to make modifications to the civil asset forfeiture program. We required probable cause for the seizure of property. And we raised the burden on the government, who has the initial burden in all of these cases, to the same preponderance of the evidence standard used in all civil cases. In addition, if the government lost the case, then the government pays attorneys’ fees. I believe those were good reforms that strengthened the program.”

Those modifications to the civil asset forfeiture program he is talking about is the Civil Asset Forfeiture Reform Act of 2000 – “CAFRA.” I can’t believe he is trying to take credit for CAFRA’s reforms!

I consulted with Representatives John Conyers and Henry Hyde in drafting CAFRA, and my organization Forfeiture Endangers American Rights lobbied for it for 8 years before it passed.

Sessions and Schumer were major opponents of forfeiture reform. They fought CAFRA’s positive reforms every inch of the way!

Once CAFRA passed in the House, Sessions and Schumer introduced a competing bill drafted by the DOJ, which added about 200 new forfeiture triggering offenses and poked huge loopholes in our due process reforms.

Because of Sessions and Schumer — and Orrin Hatch, who wouldn’t let our bill go out of his Senate committee without forcing a compromise — those 200 new offenses got added to CAFRA. Even worse, Sessions and Schumer forced the DOJ’s proposed loopholes into our reform provisions too, watering down the Hyde bill and eroding its due process reforms.

Sessions tries to take credit for the probable cause requirement, saying the modifications to the forfeiture program that he and Schumer made “required probable cause for the seizure of property.” He can’t take credit for that. The Fourth Amendment requires probable cause before property is seized.

It was nice of him — or more likely Deborah Connor, Acting Chief of the Asset Forfeiture and Money Laundering Section — to require agency lawyers to review local police seizures for probable cause before agreeing to federal adoption. They should have been doing it all along.

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Cold consent encounters of the civil liberties violating kind

2017-05-072017-05-08 Brenda Grantland

Download “DoJ-OIG: Review of the Department’s Oversight of Cash Seizure and Forfeiture Activities” – Downloaded 0 times –

The March 2017 report from the Justice Department’s Office of the Inspector General — Review of the Department’s Oversight of Cash Seizure and Forfeiture Activities — sounds like a snoozer but drops quite a few fact bombs. How did the news media miss this when it came out a few weeks ago?

The report’s mind-numbingly boring prose was a clever way to slip it in under the radar, but just as you’re about to nod off you trip on a fact bomb and you have to do a double take and reread the passage. There are some pretty amazing things in it.

1. The DOJ doesn’t keep statistics that could prove whether asset forfeiture deters criminal activity

“The Department asserts that asset forfeiture is an effective law enforcement tool that dismantles criminal organizations by removing the proceeds of crime used to perpetuate criminal activity…. However, we found that although Department investigative components have the authority to and do forfeit cash from individuals without charging these individuals with a crime, they do not collect data to measure, among other factors, how often seizures and forfeitures advance or relate to criminal investigations. Without fully evaluating the relationship between seizures and law enforcement efforts, the Department cannot effectively assess whether asset forfeiture is being appropriately used and it risks creating the impression that its law enforcement officers prioritize generating forfeiture revenue over dismantling criminal organizations.” OIG Report p. 16.

“[W]ithout evaluating data more systemically, it is impossible for the Department to determine (1) whether seizures benefit law enforcement efforts, such as advancing criminal investigations and deterring future criminal activity, or (2) the extent to which seizures may present potential risks to civil liberties.” OIG Report pp. ii-iii.

The OIG was particularly concerned about the DOJ’s lack of automated statistics linking forfeited assets to particular criminal investigations and prosecutors. Without this information, it is impossible to determine the percentage of forfeiture seizures for which no one was prosecuted for a crime. There are challenges to gathering that data into a database, as the OIG recognized. For example, there may be an arrest and prosecution of someone associated with the seized property by a different sovereign — the state vs. the US government. It would be hard to gather that information, but without it — “particularly for those seizures and forfeitures that occur without judicial involvement, the Department cannot effectively oversee its asset seizure and forfeiture activities to ensure these activities sufficiently benefit law enforcement’s efforts to dismantle criminal organizations and do not present significant risks to civil liberties.” OIG Report p. 17.

2. Random stops in airports and on highways “present risks to civil liberties”

Civil libertarians and forfeiture reformers have long known that roadside forfeiture traps and airport profile stops use racial profiling to target the most vulnerable population because they are more easily intimidated into submission and often lack the funds to fight back. We just know this because we see how frequently the police target minorities and how lame the cops’ excuses are for making the stop. It’s kind of surprising when you hear the Justice Department’s Office of Inspector General recognize that. You have to read their words carefully to understand that, though, because they talk in code.

They call these random stops in airports and on highways “cold consent encounters.” Sounds like a new Ben & Jerry’s flavor!

The report doesn’t really define cold consent encounters, but you can figure it out from the context — “cash seizures that… appeared to have occurred without a court-issued warrant and without the presence of narcotics….” Generally they occur in “airports, parcel distribution centers, train stations, and bus terminals, or as a result of a highway interdiction or traffic stop.” OIG Report p. iii. They have a likelihood of being “susceptible to racial profiling.” A cold consent encounter can occur in two ways “an agent approaches an individual based on no particular behavior by the individual” or “an agent approaches an individual based on the officer’s perception that the person is exhibiting characteristics indicative of a drug crime without any independent predicating information.” OIG Report p. 2.

The report concluded that “… the DEA did not use data sufficiently to assess whether cold consent encounters were conducted in an unbiased or effective manner. This was a concern because seizures resulting from these encounters can be random or triggered by an individual’s behavior rather than foreknowledge of the individual’s involvement in criminal activity; thus, such seizures can present risks to civil liberties.” OIG Report p. 2. The OIG made the surprising conclusion that “the DEA had not collected sufficient data on cold consent encounters to assess whether they are conducted in an unbiased or effective manner” and that the DEA failed to ensure “that training and operational requirements were clearly established and communicated to the interdiction task force members who conduct these encounters or that all group members had attended the DEA’s interdiction training.” OIG Report pp. 2-3.

Because the agencies did not keep the data, the OIG conducted a “judgmental sample of 100 DEA cash seizures.” These were not strictly random samples, but were selected based on criteria that made them suspect — no warrant and no drugs or other evidence of criminal behavior. Of that 100, 85 occured during “interdiction operations” (forfeiture traps) at airports, parcel distribution centers, train stations, bus terminals.and in highway stops. The OIG found that “all but 6 of the 85″ seizures” — in other words, 79 out of 85 — “were initiated on the observations and immediate judgment of DEA agents and task force officers absent any preexisting intelligence of a specific drug crime (the remaining six were based on preexisting intelligence).”

From that sample of 100 “the DEA could verify that only 44 of the 100 seizures, and only 29 of the 85 interdiction seizures, had (1) advanced or been related to ongoing investigations, (2) resulted in the initiation of new investigations, (3) led to arrests, or (4) led to prosecutions. When seizure and administrative forfeitures do not ultimately advance an investigation or prosecution, law enforcement creates the appearance, and risks the reality, that it is more interested in seizing and forfeiting cash than advancing an investigation or prosecution.” OIG Report p. iii.

Wow – did they just admitt policing for profit is rampant?

3. Task forces and the local cops that seize property under the federal adoption program are not adequately trained in federal law

“We also found that the Department’s investigative components do not require their state and local task force officers to receive training on federal asset seizure and forfeiture laws and component seizure policies prior to conducting federal seizures. As a result, state and local task force officers, who wield the same authorities to make seizures as the Department’s Special Agents, may not have received training on these topics beyond what is included in their respective law enforcement academy curriculum.” OIG Report p. iii-iv.

4. Eric Holder’s order limiting federal adoption had a significant financial impact

Federal Adoption, and the wider “Equitable Sharing” program are big money makers for state and local cops. According to the DOJ, its Equitable Sharing program has paid over $6 billion to state and local cops since fiscal year 2000. OIG Report p. 1. [Since this report was issued in early 2017, it probably relied on data through the end of fiscal year 2016. See 2016 audit of annual report https://oig.justice.gov/reports/2016/a1706.pdf]

The OIG studied the effect of former Attorney General Eric Holder’s order limiting federal adoption of state seizures and concluded that “the elimination of most adoptions contributed to a reduction in the annual number of DEA cash seizures by over half and the annual value of DEA cash seizures by more than a third.” OIG Report p. iv. [Note: that doesn’t mean that property was necessarily given back to the owner — the cops may have used their own state laws to forfeit it.] Holder’s limitation on federal adoption especially reduced the forfeiture income in two states where the cops used federal adoption to get around state laws that “placed limitations on state forfeiture.” OIG Report p. iv. [It did not say which states those were, but I suspect one of them is California where the cops have to get a conviction to forfeit some property.]

The OIG was concerned about the Holder policy’s loophole for joint task forces because “seizures derived from joint interdiction operations may not always advance a federal criminal investigation or lead to a prosecution.” OIG Report p. iv. However, the OIG said the agencies believe the funds from federal adoptions “foster cooperation among all levels of law enforcement by enabling them to contribute personnel to federally led task forces and joint investigations,” which it portrays as a laudable goal.

5. DEA cash seizures overwhelmingly result in forfeiture

“Of the DEA’s 80,141 cash seizures that occurred between FYs 2007 and 2016, a claim or a petition was filed for 15,867 (20 percent). Of these 15,867 seizures with a related claim or petition, 6,232 (39 percent) resulted in a full or partial return. The DEA also returned part or all of an additional 492 cash seizures for which it had not received a claim or a petition.

“Overall, the DEA returned all or part of 6,724 cash seizures, or 8 percent of the seizures it made, between FYs 2007 and 2016. In terms of value, we also found that the DEA returned approximately $153 million of its cash seizures, while approximately $3.8 billion was forfeited and deposited into the Department’s Assets Forfeiture Fund.” OIG Report p. 14.

6. Administrative forfeiture makes up the majority of forfeitures

The OIG analyzed data from the Justice Department’s Consolidated Asset Tracking System (“CATS”) and found that between fiscal years 2007 and 2016, three federal agencies (ATF, DEA and FBI) “forfeited 77 percent of the number and 23 percent of the value of all assets through the administrative process.” Translated into plain English, that means 77% of property seizures were obtained through administrative forfeiture, but administrative forfeitures account for only 23% of the total revenue from property forfeiture.

The report attributed the huge variation in the percentages to a few really, really large civil forfeitures that skewed the data, giving the example of one asset worth $7.2 billion from the Bernie Madoff case. It overlooked the fact that a statute limits administrative forfeitures to seizures of property worth $500,000 or less. Larger value seizures have to commence with the judicial civil forfeiture process.

7. Some forfeiture revenue is “returned to crime victims”

“According to the [Justice] Department, it has returned more than $4 billion in forfeited funds to crime victims since fiscal year (FY) 2000.” OIG Report p. 1. This is $2 billion less than the amount paid out to state and local law enforcement under the Equitable Sharing program.

The nonchalant way the government describes this practice of “returning” forfeiture revenue to crime victims hides the fact that many of these cases involved crime victims whose money it was in the first place. The DOJ has raked in some really big bucks from the collosal Ponzi schemes that were exposed when the 2008 recession caused them to crash. In a true Ponzi scheme, such as Madoff’s and Thomas Petters,’ money from later investors were used to pay off earlier investors. There was valuable commodity being bought and sold, and no profit generating activity of any kind. The Ponzi schemer was merely robbing Peter to pay Paul. So when the DOJ seized and forfeited billions in each of these schemes, in reality they were seizing and forfeiting the victims’ money. Yes, the seized property was the proceeds of crime and therefore subject to forfeiture, but it is still the victims’ money. They are not punishing the criminal defendant by taking the money which he never had a right to in the first place; they are only punishing the victims who were defrauded.

My point is, the government has no right to brag about returning $4 billion in forfeited property to crime victims — it was the victims’ money. What the report doesn’t say is that, even in crimes where the seized money really belongs to victims, the government keeps some of the seized money for itself, and shares some of it with state and local police or other federal agencies that assisted with the case. The victims get what is left, if anything.

Unfortunately the OIG report was just too tedious to finish reading. I started skimming at about page 8 and stopped reading at all on page 18 (out of 40 pages). If you read the rest of the OIG report and find something juicy, please email me.

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Surprise, surprise… DOJ admits Holder policy will have little impact

2015-02-062016-10-27 Brenda Grantland Leave a comment

An article by Matt Sledge and Ryan J. Reilly, posted last night on Huffington Post, corroborates my initial reaction to Attorney General Holder’s policy order limiting Federal Adoption. The article, Justice Department Budget Projects Some Asset Forfeiture Payments Will Rise Despite Reforms, Huffington Post, 2/5/2015, quotes Justice Department deputy assistant attorney general Jolene A. Lauria Sullens as saying Federal Adoption “wasn’t a big revenue for the asset forfeiture fund” and “it was a very small amount of cases that were adopted.”

The Justice Department estimates payments shared with city and state police will actually increase to $500 million in the current fiscal year, which began in October, from $487 million in the previous fiscal year. The department projects these “equitable sharing” payments will fall to $476 million in fiscal 2016.

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The truth about multi-jurisdictional drug task forces

2015-02-022016-11-10 Brenda Grantland Leave a comment

Attorney General Eric Holder’s Policy Order limiting a tiny aspect of the asset forfeiture program — federal adoption — is a hot topic in the news lately. In reality the policy change will not make a dent in federal adoptions because of the multi-jurisdictional task force exemption. A multi-jurisdictional task force is made up mostly of local and state cops, with a federal agent or two to give it that federal connection. See the DEA website page DEA Programs: State & Local Task Forces. Be sure to click on the interactive map on that page to see the multi-jurisdictional task forces operating in your state.

The Holder policy order was partially a clever ploy to appease those clamoring for forfeiture reform. It was also a Trojan horse because it encourages state and local police agencies to form multi-jurisdictional task forces with the federal government if they want to preserve their previously abundant Equitable Sharing revenue streams.

Task forces are governed by contract between participating police agencies. State and local police agencies are created and regulated by statutes and/or ordinances, and answer directly to the local or state government which created them, and the agency’s chain of command answers to the top official of the agency, with internal checks and balances to ensure that they enforce the law they were hired to enforce. The state or local legislature controls their purse strings and that is a big motivator to get them to obey the applicable state or local law.

The fact that the federal government could override that statutorily established chain of command, substituting federal law for the law of the state, county or city that hired them is questionable in itself. That state and local officers’ chain of command could be supplanted by a board of directors created by private contract between law enforcement agencies is a topic of grave concern that warrants discussion.

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Attorney General Holder’s Asset Forfeiture Policy Limiting Federal Adoption Will Not Stop the Abuses

2015-01-172017-07-20 Brenda Grantland 3 Comments

Download “Atty. Gen. Holder order limiting federal adoption” AGassetforfetureorder.pdf – Downloaded 7046 times – 353.91 KB Download “Atty. Gen. Holder press release re: order limiting federal adoption” DOJpress-release-Holder-policy-Fed-Adoption.pdf – Downloaded 10442 times – 103.42 KB

There was widespread rejoicing yesterday when U.S. Attorney General Eric Holder ordered a new policy governing the Asset Forfeiture Program’s “Federal Adoption” program (often known under the broader term, Equitable Sharing).

Immediately after the order was issued, newspapers, non-profit websites, and people on Facebook were celebrating the demise of civil forfeiture as we know it. Breathless articles were published on the internet and widely reposted, reporting the news based on facts gleaned from other newspaper articles – instead of the policy order itself. [Note: You may download Holder’s policy order and the DOJ press release about it from the Download Attachment links at the top of this page.]

As the story spread, exaggerations grew. By yesterday afternoon, the hysteria on Facebook was spreading faster than I could post comments debunking the misunderstandings. Forfeiture victims were asking if they can get their stuff back now.

The problem began with reporters who misunderstood the legal terms used in the order. For example, the web article Amazing! Holder Ends An Asset Seizure Program, which has since been replaced, 1/ said Holder announced the U.S. “was ending the Federal Government’s ‘Equitable Sharing’ program, otherwise known as civil forfeiture.” Some people took that to mean civil forfeiture had been abolished by Holder’s order – it hadn’t. Equitable Sharing is not the same thing as civil forfeiture. And Holder’s order was not really about the Equitable Sharing program, but the subdivision of that program known as Federal Adoption.

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