Eric Holder (mostly) ends Federal asset forfeiture

January 16, 2015 2:29 PM

The Justice and Treasury Departments no longer authorize local police to take people's cash, cars, and homes without evidence of a crime. Maybe police will do that less then! Previously: they've been doing that a lot.
posted by nicwolff (43 comments total)

To be sure, this only ends the federal participation and not the similar state run initiatives.

It is still substantial, because the fed program shared the money with the department, whereas the state one generally send all the money to the state's general fund.
posted by Pogo_Fuzzybutt at 2:31 PM on January 16, 2015

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.

1) "Adoption" is a terrible euphemism, is it used elsewhere/ by other agencies who seize goods?
2) That's a pretty loose "maybe" for state and local police ending their practice. States rights, "we're not like the feds," etc.

The Washington Post: Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.
posted by filthy light thief at 2:35 PM on January 16, 2015 [3 favorites]

So does that mean the states won't have to split the take with the Feds? Doesn't that mean the states will do it even more since they get the whole kaboodle?
posted by winna at 2:36 PM on January 16, 2015 [2 favorites]

But if we outlaw stealing people's shit, only outlaws will steal people's shit!!
posted by Atom Eyes at 2:38 PM on January 16, 2015 [50 favorites]

From the Washington Post article that filthy linked, supporting Fuzzybutt's suggestion that this may significantly curtail the practice:

While police can continue to make seizures under their own state laws, the federal program was easy to use and required most of the proceeds from the seizures to go to local and state police departments. Many states require seized proceeds to go into the general fund.

Maybe we can dig up an analysis of the state asset-forfeiture laws?
posted by nicwolff at 2:40 PM on January 16, 2015 [4 favorites]

The Washington Post piece I linked upthread has a lot more background. I clipped a line out of it before reading the whole thing. But it doesn't touch on what this could actually mean for state and local police, beyond 1) state and local police keep around 80% of the value of the seized assets, and 2) the federal program laid the groundwork for states and local jurisdictions to replicate, which they have.

The second point is the troubling one. Is this really making things better, or reducing the Federal take, which was already pretty low (Holder is quoted as having said "Over the last six years, adoptions accounted for roughly three percent of the value of forfeitures in the Department of Justice Asset Forfeiture Program")?
posted by filthy light thief at 2:44 PM on January 16, 2015

Presidential debates center on the Big Issues: war, recession, the environment, crime. But a lot of what's at stake at election time, maybe even the majority of what's at stake, has to do with administrative decisions like this one, carried out below the Presidential level, that affect what money can move where under what circumstances, and have big effects on a lot of people.
posted by escabeche at 2:45 PM on January 16, 2015 [28 favorites]

In other news the Attorney General's website has clearly been hijacked by pinko commu-anarchist leftists who hate America.
posted by Tell Me No Lies at 2:48 PM on January 16, 2015 [4 favorites]

Congress is apparently backing this, too.

I learned today I definitely have a cynical streak, because for a bit I was thinking this couldn't be real and these pieces were all part of a concerted kind of satire consisting of what the world would be like if things actually worked.

But this seems to be real.
posted by weston at 2:49 PM on January 16, 2015 [8 favorites]

Many states require seized proceeds to go into the general fund.

What do they mean by "the general fund," though? I assume it's the overall state budget's, idk, checking account, or whatever.
posted by poffin boffin at 2:52 PM on January 16, 2015

Congress is apparently backing this, too.

given the current state of Congress that gives me very little hope that this is actually good for anyone.
posted by feckless fecal fear mongering at 2:55 PM on January 16, 2015 [2 favorites]

What do they mean by "the general fund," though? I assume it's the overall state budget's, idk, checking account, or whatever.

Pretty much yeah.

In the federal program, 80% of the take went back to the department itself, to be spent however the Merry Sheriff decides. Naturally, this provides a huge incentive to separate "criminals" from their possessions since the cops basically got to keep what they took for themselves.

The state systems, however, the money goes to the state, not the department - it don't go the Merry Sheriff. It's still theft, but now the cops don't get to keep it. Which I imagine would take some of the joy out of it.
posted by Pogo_Fuzzybutt at 3:01 PM on January 16, 2015 [13 favorites]

Holder said he'd stay on until a replacement was designated.

So until the senate consents to a nominee from the President, then Holder pretty much has a lot of leeway in setting policy.

So now the senate has the choice of picking one of Obama's choices, or letting Holder stay on. Hmm.
posted by Zangal at 3:02 PM on January 16, 2015 [7 favorites]

Well more and more it seems a war is on against American citizens in general. Flash grenades, confiscations, shootings, all with no repercussions to the perpetrators. Then we are encouraged to fear terrorism, right.

Maybe something will change, maybe the new Senate and Congress is here to serve the people of the United States after all, ha ha ha ha ha *snicker* ha ha ha *quiet sob*, really? I would love it if someone would get real for even five minutes regarding the loss of basic guarantees in this nation.
posted by Oyéah at 3:03 PM on January 16, 2015 [3 favorites]

This is a good thing. But I'd feel a hell of a lot better about it if federal asset forfeiture were now illegal rather than simply not policy.
posted by Justinian at 3:03 PM on January 16, 2015 [17 favorites]

So now the senate has the choice of picking one of Obama's choices, or letting Holder stay on. Hmm.

In related news, Holder will be the Attorney General until Hillary's second term.
posted by Holy Zarquon's Singing Fish at 3:04 PM on January 16, 2015 [3 favorites]

I heard he's going to change his first name to Place.
posted by Atom Eyes at 3:09 PM on January 16, 2015 [34 favorites]

So does that mean the states won't have to split the take with the Feds? Doesn't that mean the states will do it even more since they get the whole kaboodle?

Maybe they'll do it less, since it won't take as many highway robberies to meet the department's mandatory quota.
posted by Sys Rq at 3:09 PM on January 16, 2015

But I'd feel a hell of a lot better about it if federal asset forfeiture were now illegal rather than simply not policy.

That's effectively what's happened though. It was never federal agents doing the seizing. This takes away the federal leverage local law enforcement officials had to carry out these seizures. The DOJ has no jurisdiction over state and local laws anyway, so they've made it as illegal as they can.
posted by dry white toast at 3:12 PM on January 16, 2015 [1 favorite]

I feel like this post had to have come from Cloud Cuckoo Land.
posted by allthinky at 3:14 PM on January 16, 2015

What do they mean by "the general fund," though? I assume it's the overall state budget's, idk, checking account, or whatever.

Yeah, basically. It's the account where the state takes money from sources like property and income tax that aren't allocated to any particular use as part of the revenue stream (unlike, say, a fuel tax that needs by law to be used for highway funding) and spends it on most of the services that the state provides.

There's still not anything (other than maybe politics) that's stopping the states from passing a budget that effectively gives it back to the police, but it doesn't flow to police budgets automatically like the money from the federal program did, so hopefully there's less incentive for local cops to abuse it quite so absurdly.
posted by strangely stunted trees at 3:15 PM on January 16, 2015 [1 favorite]

OK, so from "Policing for Profit" by the Institute for Justice, here's a table showing what percentage of the proceeds of asset forfeiture are distributed to police under each state's laws (as of 2010):

0%

Indiana, Maine, Maryland, Missouri, North Carolina, North Dakota, Ohio, Vermont

50%

Colorado, Wisconsin

60%

Connecticut, New York

63%

Oregon

65%

California

75%

Nebraska

80%

Louisiana, Mississippi

85%

Florida

90%

Illinois, Minnesota, New Hampshire, Rhode Island, Texas

95%

South Carolina

100%

Alaska, Alabama, Arkansas, Arizona, Delaware, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wyoming

and here is the lowest standard of evidence that each state applies:

Prima Facie/Probable Cause

Alabama, Alaska, Delaware, Georgia, Illinois, Massachusetts, Missouri, Montana, North Dakota, Rhode Island, South Carolina, South Dakota, Wyoming, Washington

Preponderance of the Evidence

Arizona, Arkansas, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Mississippi, New Hampshire, New Jersey, New York, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, Virginia, West Virginia

Clear and Convincing

California, Colorado, Connecticut, Florida, Minnesota, Nevada, New Mexico, Ohio, Utah, Vermont

Beyond a Reasonable Doubt

Nebraska, North Carolina, Wisconsin

So a lot of states' cops may keep using the state laws, but some will either get less than 80% or have to show more than preponderance of the evidence.
posted by nicwolff at 3:27 PM on January 16, 2015 [29 favorites]

State legislatures really don't like to dedicate funds. A typical dodge is what happened when Louisiana voters approved a lottery with the caveat that lottery proceeds had to be dedicated to education. And so they were -- and an equivalent amount of funding for education that had been coming from the general fund got redirected to other things. OOPS!

So yeah, the sordid history of cops casing a ranch they're going to seize to see what a great training center it's going to make are pretty much done by this. While they can still steal your cash if that's going to the general fund the local cops are more likely to see it as a paperwork nuisance than as something that will buy them new toys or a raise. So it looks pretty good.

President small cute dog is doing good too.
posted by localroger at 3:29 PM on January 16, 2015

but some will either get less than 80% or have to show more than preponderance of the evidence.

On the other hand, 90% of the states requiring only Prima Facie get 90+% of the takings.
posted by rhizome at 3:34 PM on January 16, 2015

Good god, I hope this is effective. "Asset forfeiture" might be one of the worst things to happen to America in the past generation.

"That's an awful nice anything and everything you have there. Be an awful shame if it were to be involved in a crime somehow."
posted by DoctorFedora at 3:40 PM on January 16, 2015 [8 favorites]

My favorite sad police quote from the WP article:

“It seems like a continual barrage against police,” said John W. Thompson, interim executive director of the National Sheriffs’ Association. “I’m not saying there’s no wrongdoing, but there is wrongdoing in everything.”
posted by chortly at 3:50 PM on January 16, 2015 [6 favorites]

In an ideal world the police would welcome this move, as it helps restore the publics flagging confidence in the integrity of law enforcement. I'm not surprised at the actual response of the police (John Thompson), however.

I'll try to remember this data-point when I'm complaining about Obama; he might not be the perfect president, but its hard to imagine this happening under a Republican president.
posted by el io at 3:56 PM on January 16, 2015 [6 favorites]

Exactly escabeche--it's all the little but substantial stuff we never talk about during election season that actually matters most. While we're busy watching the spectacle of the horse race, hardly any consideration's given to the actual details and broader implications of the policy issues. The actual substance of the issues is always too controversial or "boring" to get around to debating.
posted by saulgoodman at 4:13 PM on January 16, 2015 [3 favorites]

In the federal program, 80% of the take went back to the department itself, to be spent however the Merry Sheriff decides. Naturally, this provides a huge incentive to separate "criminals" from their possessions since the cops basically got to keep what they took for themselves.

I always figured that that was a big bribe to the local law enforcement to help them be more enthusiastic about the War on (Some) Drugs, since they were the ones who were on the notional front lines.
posted by Halloween Jack at 4:24 PM on January 16, 2015 [1 favorite]

Wikipedia has more info on individual state laws:

Civil forfeiture varies greatly state by state. An analysis by Sarah Stillman in The New Yorker suggested that states that place seized funds in neutral accounts, such as Maine, Missouri (which puts seized funds in accounts for public education), North Dakota, and Vermont, have been much less likely to have major scandals involving forfeiture abuse. States like Texas and Virginia and Georgia which have few restrictions on how police use the seized funds have had more scandals, as well as states which allow the Equitable sharing program. With Equitable Sharing, state police can "skirt state restrictions on the use of funds", according to Stillman. In Florida, using Equitable Sharing, the small village of Bal Harbour raked in almost $50 million in three years by its vice squad. Only in Nebraska and Wisconsin does the civil forfeiture standard of beyond a reasonable doubt happen.

Florida. Allows Equitable sharing between state and federal agencies.

Georgia. There are few restrictions on how police use seized assets. Georgia investigators found more than $700,000 in "questionable expenses" by Camden County's sheriff between 2004 and 2008, including a $90,000 Dodge car and a $79,000 boat.

Maine Seized funds go into neutral accounts.

Maryland. In Maryland, police forfeitures were $6 million in 2012 and $2.8 million in 2013.

Minnesota. Minnesota passed a law in 2014 which forbids authorities from confiscating property unless they have been convicted of a crime or plead guilty to committing it.

Missouri Seized funds go into accounts earmarked for public education.

Nebraska State civil forfeiture standard is beyond a reasonable doubt.

Nevada. There were allegations that Nevada police unlawfully took tens of thousands of dollars from motorists.

New Mexico Government took $800,000 from a used car dealer in Albuquerque, New Mexico, and held his money for many months before giving it back, but the seizure had an adverse effect on his business and on the owner's health.

New York New York City ransacked a home, seized cash, but it was later returned.

North Carolina. Abolished civil forfeiture almost entirely.

North Dakota Seized funds go into neutral accounts.

Pennsylvania. In Philadelphia, it is often the homes of African-Americans and Hispanics who are targeted by civil forfeiture abuses; what happens in many instances is that a child or grandchild who doesn't own the home is nabbed on a drug-related offense, and police use this as a pretext to seize the entire home.[6] In Philadelphia, authorities made thousands of "small-dollar seizures"; in 2010, the city filed 8,000 forfeiture cases which amounted to $550 for the average take. From 2002 to 2012, Philadelphia seized $64 million by means of its forfeiture program, a total which was more than that seized by Brooklyn and Los Angeles combined.

Texas. In Texas, in Jim Wells County, authorities seized more than $1.5 million during a four-year period mostly off of U.S. Route 281, described as a "prime smuggling route for drugs going north and money coming south." Seized cash is a third of the budget of the sheriff's department, allowing it to buy more equipment, high-powered rifles, and police vehicles. There are few restrictions on how police use seized funds. In some counties in Texas, 40% of police revenue comes from forfeitures. Texas, with many smuggling corridors to Mexico, and police seized $125 million in 2007.

Vermont Seized funds go into neutral accounts.

Virginia. Few restrictions on how police use seized assets.

Washington, D.C.. Victims seeking to get their seized property back in Washington, D.C. may be charged up to $2500 for the right to challenge a police seizure in court, and it can take months or years for a decision to finally happen.

Wisconsin State civil forfeiture standard is beyond a reasonable doubt.
posted by triggerfinger at 4:34 PM on January 16, 2015 [3 favorites]

poffin boffin: "What do they mean by "the general fund," though? I assume it's the overall state budget's, idk, checking account, or whatever."

Funds that aren't specifically earmarked, basically. Like Medicare/Medicaid will have its own fund; your state pension funds are probably separate; there may be a separate capital projects fund. Things are segregated out of the general fund for a variety of reasons -- like they are a fixed expenditure required by law (pensions, in my state), or they're a federal pass-through program with separate accounting (medicare/caid); or they may be raised under a separate funding scheme (like a tax increase was passed specifically to fund birdhouses, or lotto profits must fund education). The "general fund" is your general "taxes go in, state spending comes out" fund. When your state "slashes the budget" that almost always means the general fund and programs funded out of it, which are things like education and prisons and the department of natural resources and your state EPA and whatnot.

IN GENERAL, it's thought that putting money for local enforcement actions (police or judicial or environmental or whatever) into the state's general fund is better governance, because having local police departments fund themselves through, say, speeding tickets creates a massive incentive to hand out ALL THE SPEEDING TICKETS, regardless of whether they're deserved or not. (This is one of the complaints about policing and enforcement in Ferguson -- since such a large percentage of the city's budget comes from tickets, penalties, and court-ordered payments, there is a massive incentive to over-punish, and in particular to over-punish groups who don't vote, so that groups who do vote can have lower taxes.) Typically when you shift monetary penalties garnered from enforcement to the people responsible for that enforcement, it's because you're trying to step up enforcement by adding a direct monetary incentive for the enforcing agency to focus on that particular issue. That is part of the rationale behind this program -- as cities became more sophisticated about combating drug-running, drug-runners shifted more operations to rural areas, where rural cops who deal with speeding and drunk driving were reluctant to involve themselves with dealing with drug runners -- much more dangerous and potentially violent, a lot more hassle to see through the judicial system, etc. Enough rural departments jumped on the asset forfeiture that it had some effect on drug-running ... but much MORE effect on harassment of innocent citizens.

That has in general been the outcome of rewarding penalties to the penalizing agency, that the problems of unintended over-penalization outweigh the benefits of the increased legitimate penalization, so government types have been backing off this idea, or piloting it in much smaller studies first before making it state (or federal) law (because sometimes it works okay, and it's not always totally clear if it will until you try it). However, it will probably continue to be A Thing in government for a while, because business people with no government experience who come in to state and local government always think directly rewarding the people doing the work is the best way to incentivize them to be good at their jobs! Without realizing that incentivizing police to arrest lots and lots of people is not quite the same as incentivizing a Target checkout clerk to check people out more efficiently.

If I had a nickle for every Local Businessperson With Money who came to local government to tell people with 40 years experience in governance that Everything in government could be fixed if you'd only use monetary incentives! Well, basically, I'd have so many nickles that it might incentivize me to sit through that annoying conversation.

Anyway. It's usually better for these sorts of forfeitures and penalties to go into a general fund (whether state or county or whatever) because of the massively perverse incentives it creates otherwise.
posted by Eyebrows McGee at 4:45 PM on January 16, 2015 [13 favorites]

This has also been a persistent issue on the libertarian right.
posted by spitbull at 4:46 PM on January 16, 2015 [5 favorites]

Radley Balko: Breaking down Holder’s move to limit civil asset forfeiture abuse
posted by homunculus at 5:08 PM on January 16, 2015 [4 favorites]

given the current state of Congress that gives me very little hope that this is actually good for anyone.

Even a stopped clock is right twice a day. Granted, Congress amounts to a whole lot of stopped clocks (a congress of them, even), and they're all at different times, but still...

My first thought when I saw Republicans backing this was that this might make Tea Partiers happy, because they have that whole "The Constitution says...!" stance. Sadly, they usually haven't actually read the Constitution and/or clearly don't understand it, but protections against search & seizure are pretty clear. Anyone with a basic understanding of the Constitution should see civil asset forfeiture as a screaming violation of the Bill of Rights...let's not get into how often that happens...but in the end, that should therefore be a pretty clear win with Tea Partiers.

Conversely, on the left: obvious move to protect civil rights. Painfully obvious. As in "why in the hell has this ever been a practice in the first place?" obvious.

You win over people on the right, you win over people on the left, you win over people in the middle who actually pay attention to stuff...suddenly you look like you're reasonable, and you can put your name to a Good Thing.

At least, that's my hope.

My expectation is that other Republicans will fight/block this simply because they don't want anything positive to come out of this Administration, but...meh. We run that risk with literally everything now. We've gotta see a few wins sooner or later.
posted by scaryblackdeath at 5:16 PM on January 16, 2015 [8 favorites]

Civil liberties shouldn't be a right/left issue.
posted by el io at 8:04 PM on January 16, 2015 [5 favorites]

what about the folks that had their stuff taken over the last 30 years?
posted by Fupped Duck at 8:18 PM on January 16, 2015 [4 favorites]

Civil liberties shouldn't be a right/left issue.

I agree. Torture should also not be a right/left issue. Protecting consumers shouldn't be a right/left issue. The list goes on and on. And yet, here we are.
posted by scaryblackdeath at 12:01 AM on January 17, 2015 [5 favorites]

We should plot out the state level asset forfeiture legislation details vs the states' overall allegiance to Republican or Democratic parties.
posted by jeffburdges at 1:22 AM on January 17, 2015

Of course civil liberties divide left/right. In some ways it's the basic division between left and right, so I don't understand why they "shouldnt" be the subject of left/right debates. Asset forfeiture in particular has mostly been just fine with establishment law and order conservatives. Libertarian opposition to CAF draws derisive sneers from conservatives, same as legal pot and abortion and a lot of other things. Gay marriage, anyone?

When you say civil rights "shouldnt" be a "left/right issue," you really mean "the right (or left) should not exist."

Civil rights are the basic point of difference,
posted by spitbull at 1:55 AM on January 17, 2015 [2 favorites]

In a certain town in Mississippi, the backs of the police cars are proudly emblazoned with something like "THIS EQUIPMENT WAS PAID FOR WITH SEIZED ASSETS"
posted by RobotVoodooPower at 7:53 AM on January 17, 2015

"Adoption" is a terrible euphemism

Yes, it's an extraordinary rendition.
posted by flabdablet at 8:46 AM on January 17, 2015 [1 favorite]

More fallout from Eric Holder’s changes to civil asset forfeiture law
posted by homunculus at 2:32 PM on January 19, 2015 [1 favorite]

I am late to this thread, but I just have to say how happy this makes me. There has been talk both here and elsewhere that the police need to be disbanded. Some hyperbolic, some not. BUT! the question of how to put in place some restrictions on out of control police forces is a serious one, and one many couldn't see happening because of the absolute power many departments have.

This move? It's like pulling the rug out from under these thugs. The 8th dimensional chess everyone argues (or hopes) Obama plays is right here. (Assuming this wasn't Holder acting alone.) It will have a fairly big impact and didn't require a prolonged campaign to try and change laws. It righted a wrong that never should have existed in the first place. And it shows that the police are not as untouchable as they think they are. I do wonder how much the NYPD gets from civil forfeiture.
posted by [insert clever name here] at 12:55 PM on January 23, 2015