By Darren Smith, Weekend Contributor
The Justice Department announced a new policy directive issued by Attorney General Eric Holder prohibiting the practice of the federal government adopting local asset forfeiture cases to the federal level. Adoption allows local law enforcement agencies the ability to utilize broad and powerful federal forfeiture and seizure laws that offer greater ability to take assets than what similar state laws would provide.
This comes as a reversal of a decades old policy of “Equitable Sharing” where the federal government would allow local law enforcement agencies the ability to use federal agencies and law to take assets in situations where state law would not permit such seizures.
The former policy had essentially the effect of hiring out the federal government in exchange for a “piece of the action.” The US would retain twenty percent of the assets and remand the remaining eighty percent to the states. With the exception of seizures relating to “public safety” such as firearms and explosives cases, this new policy change effectively could shut the door on what has been widely criticized to be a form corruptive abuse against citizens.
One of the largest criticisms was that under federal laws and the former program, citizens were effectively required prove that their assets were not proceeds from illegal activity, regardless if such illegal activity was proven or in many cases even alleged. The practice later morphed into almost a cottage industry where local police agencies would contract with the US Justice Department to, for lack of less appropriate words, “launder” the money through the federal system to make it come out squeaky clean of state due process taints for the purpose of handing it back to the local police agency. It was most lucrative in some agencies.
A Washington Post investigation concluded that over two and one half billion dollars in assets were seized from citizens resulting from traffic stops or other warrantless searches or indictments since September of 2001.
The program has its roots in the effort to combat the illicit drug trade, organized crime, and money laundering. Federal and state asset forfeiture laws became increasingly used beyond what would be considered a legitimate government interest in seizing assets acquired through felonious actions, hence taking profitability and tools away that aid in the furtherance of criminal activities. Yet it became clear to many that seizures were becoming increasingly utilized as a source of revenue. This approach bordered ethically on outright theft.
Unfortunately the courts have been rather weak in curtailing such confiscatory practices due to the courts’ acceptance of the paltry levels of due process afforded to victims of government seizures.
The Justice Department does not, of course, aim to change any policy or laws on the state level, but in this case the door is now shut for most of these questionable fishing trips used by local police in shakedowns of law abiding citizens.
The Justice Department issued the following statement:
Attorney General Prohibits Federal Agency Adoptions of Assets Seized by State and Local Law Enforcement Agencies Except Where Needed to Protect Public Safety
Today, Attorney General Eric Holder issued an order setting forth a new policy prohibiting federal agency forfeiture, or “adoptions,” of assets seized by state and local law enforcement agencies, with a limited public safety exception. A federally adopted forfeiture – or “adoption” for short – occurs when a state or local law enforcement agency seizes property pursuant to state law and requests that a federal agency take the seized asset and forfeit it under federal law. The U.S. Department of the Treasury, which has its own forfeiture program, is issuing a policy consistent with the Attorney General’s order and that policy will apply to all participants of the Treasury forfeiture program, administered by the Treasury Executive Office for Asset Forfeiture.
“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,” said Attorney General Holder. “This is the first step in a comprehensive review that we have launched of the federal asset forfeiture program. Asset forfeiture remains a critical law enforcement tool when used appropriately – providing unique means to go after criminal and even terrorist organizations. 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.”
The Attorney General ordered that federal agency adoption of property seized by state or local law enforcement under state law be prohibited, except for property that directly relates to public safety concerns, including firearms, ammunition, explosives and property associated with child pornography. The prohibition on federal agency adoption includes, but is not limited to, seizures by state or local law enforcement of vehicles, valuables, cash and other monetary instruments. This order is effective immediately and applies to all Justice Department attorneys and components, and all participants in the Department of Justice Asset Forfeiture Program. The new policy will ensure that adoption is employed only to protect public safety, and does not extend to seizures where state and local jurisdictions can more appropriately act under their own laws.
Both the Justice and Treasury Departments regularly review their asset forfeiture programs to ensure that federal asset forfeiture authorities are used carefully and effectively to take the profit out of crime, combat organized crime groups, and enable victim compensation, while ensuring that laws are followed, civil liberties are protected, and our constitutional system is strengthened. Since 2000, the Justice Department has returned approximately $4 billion in forfeited funds to victims of federal crime. Both departments will be part of the Law Enforcement Equipment Working Group, which will provide recommendations to the President regarding actions that can be taken to improve programs, like asset forfeiture, that help local law enforcement obtain equipment.
The Justice Department’s policy permitting federal agencies to adopt seizures dates from the inception of the Asset Forfeiture Program in the 1980s. The Treasury Department’s adoption policy has been part of its Asset Forfeiture Program since its inception in 1993. At the time that these policies were implemented, few states had forfeiture statutes analogous to the federal asset forfeiture laws. Consequently, when state and local law enforcement agencies seized criminal proceeds and property used to commit crimes, they often lacked the legal authority to forfeit the seized items. Turning seized assets over to federal law enforcement agencies for adoption was a way to keep those assets from being returned to criminals. Today, however, every state has either criminal or civil forfeiture laws, making the federal adoption process less necessary. Indeed, adoptions currently constitute a very small slice of the federal asset forfeiture program. Over the last six years, adoptions accounted for roughly three percent of the value of forfeitures in the Department of Justice Asset Forfeiture Program.
The new policy applies only to adoptions, not to seizures resulting from joint operations involving both federal and state authorities, or to seizures pursuant to warrants issued by federal courts. The policy does not limit the ability of state and local agencies to pursue the forfeiture of assets pursuant to their respective state laws. Law enforcement agencies working on joint task forces are required to follow the 2015 Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation or Gender Identity.
~+~
The effect will certainly have benefits in the short term. State laws usually have greater restrictions on seizures or scrutiny of what constitutes a forfeitable asset. Often there is the requirement that an actual crime or civil violation occur where the courts issue a conviction and that a significant nexus be proven between the assets and the crime/violation proven. This will certainly prove a great deterrent to abuse if the outcome is unlikely to succeed. While there is still more to be done since this does not necessarily address some of the deficiencies inherent in the federal system, at least we can perhaps see some progress on the state level.
By Darren Smith
Sources:
United States Department of Justice
Washington Post
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.
The Fine Print surfaces:
http://www.talkleft.com/story/2015/1/20/51728/9072/crimepolicy/The-Fine-Print-in-AG-Holder-s-Forfeiture-Directive
Holder’s signed order, as a pdf, here:
brendagrantland.com/truthjustice/documents/AGassetforfetureorder.pdf
Why now? To appease the peasants, says specialist in asset forfeiture defense:
http://brendagrantland.com/truthjustice/attorney-general-holders-asset-forfeiture-policy-limiting-federal-adoption-will-not-stop-the-abuses/
Loretta Lynch, Obama’s nominee for Holder’s replacement, boasts of $904 million in assets grabbed in 2013 alone.
Circle the Choomwagons, Kids!
Is that Holder? Is he possessed?
andrea, Thanks. I didn’t realize my veracity was in question, but I appreciate your anecdotes. Apparently, people mistakenly put me in the category of “SMOKER, SMOKER.” As stated, I was a smoker in the 70’s/80’s, but I saw the light, as it were. You could smoke virtually ANYWHERE before the 80’s. Here’s a fact that will ruffle the feathers of liberals. It was C. Everett Koop, a Reagan appointee Surgeon General, who spearheaded the big fight against smoking. He made it “not cool.” In large part, Hollywood had made smoking cool. And, it is still Hollywood that has many smokers. Smoking is currently interesting. Smoking is now part of the hipster culture. Smoking seems to be sorta bipolar. Upscale hipsters, Hollywood, and poor folk. Vegas is now the Mecca for smokers. So are Indian casinos. In the Indian culture, tobacco is a sacrament. All this said, I cringe when people try and rewrite history. We were smoker nation. We have many less smokers now. THAT’S A GOOD THING. But, young people are again finding smoking to be hip. That’s NOT cool. I don’t abide smoking. But, I am a libertarian. Everyone knows the risks of smoking. To each their own.
Nick – people really do not know the risks of smoking and much as you tell your 8 year old not to smoke, peer pressure is going to have a greater effect. However, leading by example is a big help. You don’t smoke, they don’t smoke.
I started smoking because my parents did. Stole their cigarettes to start my habit.
Wow. Holder did something I agree with. A pig just flew past my window!
In all fairness to Nick, I do believe him. I did my undergrad at the University of Wisconsin– Eau Claire. During my first two years there was smoking allowed throughout the student union and in the smoking rooms of the library, and I even had a professor who had a list of prohibited behaviors in his class, one of which was smoking, which would indicate to me that at one point there were students permitted to smoke in some classes. I also remember that smoking was permitted in the State Office Building in Eau Claire (sometimes I’d go visit my dad at lunch and would have to walk through a group of chain-smoking probation and parole clients waiting to speak to their agent). I also recall going to the courthouse to get my passport application submitted back in the 80’s and people smoking in the hallways. I also remember my dad complaining when my sister was born in 1973 at Sacred Heart Hospital in Eau Claire that there were so many fathers smoking in the waiting room.
But that still doesn’t excuse it. Damn, I wish I had known about smokers battery when I was younger…
DBQ, I had NO IDEA the lack of historical knowledge vis a vis smoking tobacco in the 60’s and 70’s. Radical Ray was not the only professor in the Catholic College I attended, to allow smoking in class. He was the first professor I had that allowed it. There were @ least 5-6 other professors who allowed smoking in class, including 2 priests. I always figured they allowed it so they could also bang heaters during the hour. I have discussed this w/ other folks over the years, including my bride, who went to a Presbyterian college. They all had profs who allowed smoking. Hell, even as recent as the 80’s, smoking was rampant in our culture. There is a DJ in Chicago who went to a local community college and called community college, “A high school w/ ashtrays.” What is most disturbing is how some anti smoking people POUNCE and try and rewrite history. I tried to quit a 20 year habit just once, in 1989, and I have not had one puff since. But, I am not an Evangelical like some former smokers. And, although rampant smoking is a sad part of our history, to not acknowledge it is even sadder. You could smoke in hospitals in the 1960/70’s for chrissake! There’s a great scene in The Soprano’s circa 2002, when Johnny Sac lights up in a hospital and casually asks, “I wonder if you can smoke in here.” My bride and I always analyze actors who smoke on screen and determine if they are real smokers. Johnny Sac was a no brainer. Having him die of lung cancer on the show was probably a shout out to the Evangelicals.
Nick – I am going to take your story at face value, but no college I went to allowed smoking in the classrooms. Nor should they have.
If you want a great movie smoking scene, you need the one from All That Jazz where Roy Schieder is getting an insurance checkup and both he and the doctor have cigarettes hanging out of their mouths, and hacking away.
DBQ
You are correct. It is still possible to obtain an exemption. You are also correct that many people are unaware of that fact.
I can’t imagine anyone allowing smoking in class! Fire hazard.
Someone said something about how Democrats used to be. What happened? I’m sure it’s money. Do the laws in place now allow parties to raise so much, you can’t put a campaign together without party money. That makes you an ower. I’m sure people run for office to change bad things. What happens?
Another question for you smart folk. When I hear names of committees and subcommittees it seems there are thousands. Are they necessary? Just hearing about DiFi’s latest rip off of the taxpayer because she’s mad at the CIA? How much did that cost and for what?
I think Republicans should ask former members which committees aren’t necessary. I assume some don’t go into lobbying.
Is lobbying where this country let money get out of control? Are there any current Senators who aren’t millionaires?
Tye idea of adding more tax to gas to pay for improvements is a joke. Technically, that’s what state taxes do here in CA. Until they got put into the general fund, like social security. We used to have the best roads in the country, but not keeping those taxes for roads and bridges was a death knell. If they do add on a new tax because gas prices are too low it should expire in six months. If gas has increased, the tax should be lowered or eliminated, every six months! Once they get the money permanently we all know we’ll never see it again.
Reduce the budget on programs of the EPA, Dept of Ed., Commerce, Agriculture, and IRS. Instead of gas taxes. It’s the old kitchen table discussion Congress can’t seem to understand.
Frustrated today!
The IRS is about to go deep in a different pocket so they had to get their hand out of this one.
Judging people by your current standards and NOT understanding the circumstances that occurred in the past is extremely myopic.
Man, I wish we had an edit function….or that I could proofread before hitting publish 🙁
@ Andrea and Paul
You realize that Nick was speaking about his experiences in the year 1972: smoking in class. I note he didn’t say cigarettes either 🙂 Grow up and realize that times do change and what is considered horrible today was common over 40 years ago. And vice versa……what was considered horrible back then is common place and accepted today. (I’m sure us older people could give you a few examples if you like) Judging people by your current standards and understanding the circumstances that occurred in the past is extremely myopic.
You guys would totally fail as anthropologists in the task of examining other cultures without inserting your own biases and being judgemental.
Just sayin’
DBQ – smoking in class in 1972 should have been a firing offense. I am quite aware of the myopic problems of viewing the past as though it was current, but even in 1972 you couldn’t smoke in class. I was in college in the early 1960s and nobody was smoking in class.
@Nick Spinelli, any professor that allows students to civilly batter one another (i.e. smoking in class, causing physical injury to of those of us such as I who are not only asthmatic but due to an unfortunate roll of the genetic dice also suffer from alpha-1 anti-trypsin deficiency) has lost any cred as far as I am concerned. I’ve left the practice of law (temporarily, it appears) but for many years was looking and looking for the right smoker’s battery case to set precedent in Wisconsin. If that $hit had gone down in one of my classes back in Wisconsin methinks I would have at least had a good test case.
And if you’re still practicing the filthy habit, give it up, already!
Andrea – any teacher, at any level, who knowingly allows their students to smoke in class should be fired.
@ Don de Drain
I worked in a bank for some time and most of what you say is correct about CTRs. But……..The teller who advised the client on how to avoid a CTR should have been subject to fines and possible jail time herself.
Also. A business that routinely has cash transactions to deposit can get an exemption from the routine CTR reporting. We had several grocery stores and quicky mart types who dealt with a high Hispanic demographic who do not trust banks and use mostly cash. Businesses like this have high cash deposits and it is not unusual.
We (the bank) had to show an historic pattern of cash deposits and submit a report to the Feds as to why this particular business should be exempt. However, even when exempt, we still needed to monitor for suspicious swings in the cash deposits.
Many people don’t know that they can get this type of exemption……I assume that is still the practice?
If Holder wants to repair his image before he leaves he better get one of those Men in Black memory zappers, that’s his only chance.
The recent John Oliver video on civil forfeiture is a must see.
Bailers
Not one accusation substantiated through due process. As I stated, it’s the interpretation and manipulation of the Constitution and laws that need to be scrutinized. If one does not like a politician, AG, President, these accusations have already been substantiated in one’s political bent. This can be seen throughout every Presidency regardless of party.
In the end one can only step back and see what has changed, for the better or for the worse. The US is far, far, far better off after six+years of Obama than after eight years of the three stooges. He may not be perfect and may not have fixed everything, but given the pile of sh*t he inherited, Obama has done more than alright.
The US has been on a decades long decline in the direction that is showing up more and more, especially when times are tough and contentious. This is the fault of the American people and their complacencies and fantasies. The dissolution of the middle class and the position in the world of US manufacturing did not erode due to Republicans or Democrats but because Americans have taken cheap goods in exchange for well paying jobs. This is, perhaps, human nature but prevalent in countries that have never been squashed due to excess. The collective ego coupled with an overall predisposition to being bought cheap and quick of Americans is the core problem. This has ingrained the global oligarchs in this country more so than most. Germany is the example to review because it doesn’t have the momentum of resources, ego, and fantasy as does the US. This forces them to cooperate labor, management, and government, and the result is success.
The inability of Americans to realize their fundamental weaknesses and seek solutions by looking abroad at more successful paradigms allows the oligarchs to manipulate the situation. Like Russia, the US has been on a war/ego footing since its inception. The big question is how far down is it necessary to fall before Americans demand more from their politicians.
As for Obama and Holder, they’re doing alright, comparatively speaking. Go back to Nixon’s Mitchell, Agnew, Kissinger, Bush’s Quayle, Little Bush’s Cheney, Rumsfeld, etc.
It’s tough to fix the mistakes in the system when the system is more sacred than any religion.
The timing of this frivolity is specious – at best. Holder’s leaving and NOW wants to stop seizures.
WHY?
And – will he be representing anyone – in his future – who is now “saved”? His well protected buddies at Bain Capital and Goldman Sachs – should be pleased. Pitten’s is back in the press and a RICO of all he has – should be addressed…
But NOW?
http://www.addictinginfo.org/2015/01/15/mitt-romney-tax-returns-whats-he-hiding/
“This approach bordered ethically on outright theft.” For many local PD’s, asset forfeiture crossed that border many years ago. The feds became a very good teacher of how to take whatever you want and leave innocent people with very little recourse. Now Holder wants to reign in the feds but the seeds have been sown and the states will probably adjust their confiscation rules to keep 100% of the proceeds. This genie has become so bloated it ain’t going back in the bottle anytime soon.
My township P.D. is currently owed roughly a million dollars by the DEA, an amount which is more than the P.D.’s annual budget. Most of that amount came from from single bust, a large drug dealer in the next county southeast of here. How that happened is a weird story and I urge you to find out if similar stuff is happening in your local jurisdictions.
At one of our township meetings, during the police report, we were told that in exchange for the promise of money derived from asset forfeiture, my township is paying half the salary of a DEA agent who is nominally on the township P.D. payroll. No idea who’s paying the rest, probably another municipality. At another meeting permission was sought and granted for the purchase of a vehicle for him, by township taxpayers. At that point in time, none of the promised asset forfeiture cashflow had materialized.
Those are isolated pieces of a puzzle.
Hopefully good news, but if don’t know enough about how the program worked in real life to be certain it is good news. If this means that states just step up and continue to do these forfeitures without federal involvement, extorting money out of folks who are not true bad actors, then nothing much is changing. The victims of legalized extortion, I.e., the folks who are not bad actors, typically lack the means to fight, so it will not matter whether the forfeiture is done by the Feds or by the states.
As for the IRS enforcing the laws which prohibit the structuring of cash deposits, I have had a number of clients who have danced with the IRS and DOJ in this area. If the IRS were to consistently enforce the law as written, it would be much worse than it is now.
The law allows forfeiture of cash deposited in “structured” deposits, I.e., deposits designed to avoid the filing of Currency Transaction Reports by a bank (which are required to be filed if the cash deposit exceeds $10K), even where the person depositing the cash did not know it was a crime to structure the deposits. All that is required is that the person be aware of the requirement to file a CTR if the cash deposit exceeds $10K and to intentionally take steps to avoid the filing of the CTR.
I’ve had cases where someone in the bank, usually a teller, told my client that it they could avoid the filing of CTRs by bringing in multiple deposits of less than than $10K. The client then did just that. That was a violation of the law and allowed the IRS to forfeit the deposits. All that was required for forfeiture was that the client take steps to intentionally avoid the filing of the CTR. And of course the bank teller was not about to get the Feds upset by admitting that they told the client to break down the cash deposits below $10K. Terrible result under a bad law.
So if you have a complaint about what the IRS was doing, remember that the IRS was just enforcing the law as written, which is what many folks want Obama to do in the immigration area.