Tougher rules needed on asset seizure; these bills create them
The Drug Enforcement Administration has seized billions of dollars in cash from Americans never even charged with a crime, according to a report by the Office of the Inspector General.
The report should encourage lawmakers with any commitment to due process and constitutional rights to get behind reform of existing forfeiture and seizure practices.
The OIG, an independent office within the U.S. Justice Department tasked with investigating waste, fraud and abuse in the DOJ, discovered considerable causes for concern in the practice and oversight of asset seizures and forfeitures.
Although asset forfeiture is routinely justified by law enforcement as an important tool to take down criminal organizations, the OIG noted the DOJ doesn’t collect data enabling it to measure how forfeiture activity actually advances criminal investigations.
To get a sense of this relationship, the OIG gave particular attention to the Drug Enforcement Administration, which operates under the DOJ and is responsible for most cash seizures done in the name of the DOJ. From 2007 to 2016, the DEA seized over $4 billion in cash, $3.2 billion of it taken administratively, by the determination of a government agency, rather than a court, without regard to criminal charges or a conviction.
The OIG evaluated 100 cases involving cash seizures by the DEA. Of the 100 cases evaluated, the DEA could verify only 44 cases in which cash seizures either advanced or were related to criminal investigations. In other words, in the majority of the cases, no discernible connection could be drawn between seizure activity and even the advancement of a criminal investigation.
“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,” the OIG argued.
Given the tremendous financial incentives involved, in the absence of a criminal investigation, criminal charges or a criminal conviction, there is cause for concern about whether law enforcement can be trusted to resist placing a disproportionate emphasis on revenue generating cases.
Mounting evidence suggests law enforcement cannot be trusted to behave responsibly. According to “Policing for Profit,” a report by the Institute for Justice, between 1986 and 2014, deposits to the DOJ’s Assets Forfeiture Fund grew from $93.7 million to $4.5 billion.
Fortunately, there is now a growing bipartisan understanding of the problems of asset forfeiture. Last month, Sen. Rand Paul of Kentucky and Rep. Tim Walberg of Michigan introduced The FAIR (Fifth Amendment Integrity Restoration) Act. On March 29, Rep. Jim Sensenbrenner of Wisconsin and a dozen cosponsors introduced The DUE PROCESS (Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures) Act.
Both bills shift the burden of proof from the property owner to the government, raise the standard of proof in civil forfeiture proceedings, provide legal representation for the indigent in proceedings and increase transparency. But whereas the FAIR Act would end the equitable sharing program in which the federal government splits forfeiture proceeds with state and local agencies to incentivize their participation in federal investigations, Sensenbrenner’s bill does not, an omission that should be corrected.
While it is arguable that the government should be able to take someone’s property or cash only following a criminal conviction, it is a welcome development that increasing numbers of congressmen are willing to put sensible limits on the practice.
Filed under: General Problems
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