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Hands Off My Yacht

Left and right unite against forfeiture laws. But can they convince the Department of Justice? Update: Yes.

Update 2:17 p.m. 01.16.2015

Attorney General Eric Holder significantly curtailed “equitable sharing,” a practice in which local police departments share the profits of civil asset forfeiture with federal agencies. Certain assets, like guns, are exempt from the new policy, but frequently seized assets, including money and vehicles, are not. Holder’s decisions will also strengthen state-level laws aimed at lessening the financial incentives of asset forfeiture in states like California, North Carolina and Missouri, as police will no longer be able to bypass state law by working with federal agencies.

“This is the first step in a comprehensive review that we have launched of the federal asset forfeiture program,” Holder said in a statement.

Original Story

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) has been an outspoken defender of the War on Drugs, even as politicians of both parties propose to roll it back. But there is one drug-war tactic even Grassley wants to curtail: civil asset forfeiture, which allows law enforcement to seize property whether or not the owner has been charged with a crime.

Last week, Grassley joined Senator Mike Lee (R-Utah), and Representatives Jim Sensenbrenner (R-Wis.) and John Conyers (D-Mich.) in calling on Attorney General Eric Holder to review the use (and abuse) of this power.

“We believe that in many circumstances, civil asset forfeiture is a valuable tool in combating serious wrongdoing,” they wrote. “However, we have concerns that the government is not using the process fairly and instead is infringing on the rights of small business owners and motorists.”

The intention of asset forfeiture is to deny people the spoils of their criminal activity. But the laws have been used to take mothers’ homes when their children are caught with drugs, or to seize cash and vehicles from drivers during routine traffic stops. Conservatives have been especially vocal about what they say are violations of private property rights. Asset forfeiture may be headed for reform in the Republican-controlled Congress — as long as law enforcement does not stand in the way.

Asset forfeiture burgeoned in the mid-1980s, after Republican Senator Strom Thurmond, then-Senator Joe Biden and others spearheaded its expansion under the 1984 Comprehensive Crime Control Act, which passed the Senate 91 to 1. “Criminal forfeiture statutes must be strengthened to enhance the ability of prosecutors to confiscate the assets of criminal organizations and the proceeds of illegal drug trafficking,” said Democratic Senator Edward M. Kennedy in a hearing on the bill.

Among other provisions, the 1984 Act entitled local police departments to share confiscated assets with federal agencies, a practice known as “equitable sharing.” Critics say this added to the financial incentive for police to take as much as they could to pad their departments’ accounts. It has also allowed police to sidestep recent state-level reforms by going straight to the feds instead.

Not long after Congress strengthened forfeiture powers, the lawsuits began, along with news reports of apparent overreach. In 1991, The Pittsburgh Press reported on a black nursery owner who had $9,600 in cash seized during a plant-buying trip to Houston, deemed suspicious by police. Though he never faced charges for drug dealing, the officers kept the cash.

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“We had a wave of reporting in the late 80s and early 90s documenting how wholly innocent property owners were being swept up,” said senior attorney Scott Bullock of the Institute for Justice, who heads their campaign against civil forfeiture. “Not too many [lawmakers] want to go out and say, ‘I support the confiscation of property of innocent people.’”

Like many other drug enforcement efforts, the laws led to disproportionate profiling of people of color. But this time, there were also high-profile cases of more affluent whites losing homes and businesses. The Coast Guard and Customs seized multiple yachts after finding small amounts of marijuana on board. A California heir was shot and killed during a 1992 drug raid, which prosecutors later concluded was motivated by an interest in confiscating his 200-acre ranch. Soon, interests ranging from the American Civil Liberties Union to the Aircraft Owners and Pilots Association were pushing for reform.

For seven years, Rep. Henry Hyde, Republican of Illinois, and Conyers championed the Civil Asset Forfeiture Reform Act until it was signed into law in 2000. The legislation shifted the burden of proof to the state, required indigent counsel in some cases, and gave more protections for “innocent owners.” But adamant opposition from law enforcement stripped the law of many key provisions. Customs and homeland security were mostly exempt, and the financial incentives for local police to seize property were still largely in place.

Now, pressure is mounting within Congress to go beyond the 2000 reform. But advocates fear the Department of Justice may again fight back.

“Obama’s new attorney general nominee [Loretta Lynch] is not a friend of asset forfeiture reform,” said Eapen Thampy, executive director of Americans for Forfeiture Reform. “She will block us the same way [former Attorney General] Janet Reno tried to. The question is, do we have more momentum than we did then? I think we do.”

The U.S. attorney’s office for the Eastern District of New York has profited from asset forfeiture significantly under Lynch’s leadership, taking in $113 million between 2011 and 2013. The Institute for Justice is challenging one controversial case in federal court, after a family snack-distributing business had its bank accounts seized for a series of small “suspicious” deposits. Though the family has never been charged with a crime, Lynch’s office has held on to their money — nearly half a million dollars — for more than two years. Lynch’s office did not respond to a request for comment.

Reformers say ending “equitable sharing” would be a major step in protecting property from seizure, but it does not go far enough. “Our bottom line position is that civil forfeiture should not exist,” Bullock said. “The idea that someone can lose their property without being convicted of a crime is just wholly un-American.”