There is one important caveat here: The policy includes exceptions for . . .
. . . (1) seizures by state and local authorities working together with federal authorities in a joint task force; (2) seizures by state and local authorities that are the result of joint federal-state investigations or that are coordinated with federal authorities as part of ongoing federal investigations; or (3) seizures pursuant to federal seizure warrants, obtained from federal courts to take custody of assets originally seized under state law.
The first exception is important. If it only applies to those investigations in which federal law enforcement personnel are actively involved, that’s less troubling. I’d still prefer that those investigations be governed by state law. But if that’s the limit of this exception, it isn’t so bad. But this exception could also apply to the hundreds of multijurisdictional drug task forces around the country. These task forces are usually made up of police officers from local police agencies (a few from the sheriff’s office, a few from nearby city and town police departments). Because they span several jurisdictions, they aren’t usually answerable to a single sheriff or police chief. They’re typically funded with federal grants, state grants and asset forfeiture. If the fact that they are federally funded qualifies them as a “joint task force” for the first exception, that’s a really huge loophole. If the language requires active participation from federal prosecutors or law enforcement, it’s a much smaller loophole.
I’ve talked to two attorneys who specialize in asset forfeiture, and neither could say from reading the language of Holder’s order whether or not it would apply to these multijurisdictional drug task forces. I’ve also placed a call to the Justice Department.
The second and third exceptions are important, too. Basically, they still enable local authorities to take an investigation federal if they’re really determined to do so. It just requires them to get active participation from a federal law enforcement official. As a whole, then, the new policy doesn’t eliminate equitable sharing so much as puts some roadblocks in front of local law enforcement before they can use it. But those roadblocks aren’t insignificant.
The policy also won’t change federal civil asset forfeiture at all, nor will it affect the laws in states whose forfeiture laws are more friendly to police than federal forfeiture laws.
In sum, the new policy is great, but it could be better. It will likely put a huge dent in the number of seizures made under this program and the value of the property seized. Whether it’s a major reform or a monumental one depends on whether those hundreds of anti-drug task forces are covered by that first exception.
The interesting thing here is for all the antagonism between Holder and conservatives, this new policy is one conservatives should love, for a couple of reasons. First and most obvious, civil asset forfeiture is a major affront to property rights, a principle conservatives hold dear. The idea that the government can take your property without ever even charging you with a crime, much less convicting you of one, is a pretty appalling abuse of power. And sure enough, much of the effort to reform these laws over the years has come from the right. (Although to be fair, the laws themselves were pushed heavily by the Reagan administration as part of the 1980s drug war — albeit with little-to-no resistance from Democrats).
The other reason the right should cheer this move is that it’s basically a nod to federalism. Several state legislatures saw civil asset forfeiture as unfair and moved to make it fairer. The suitable sharing program thwarted their efforts. Holder’s move ends that interference. It returns policymaking on this issue to the states. Personally, I think there’s a Fifth Amendment argument to be made that the federal government should actually prevent the states from engaging in the practice. But allowing state legislatures with a conscience to end the practice on their own is a good first step.
Kudos also to my Washington Post colleagues for their probing series on civil asset forfeiture abuses. Although many have done some great reporting on this issue over the years, the depth, breadth and scope of the Post series almost certainly was a factor in getting reform efforts going, both in Congress and at DOJ. The libertarian advocacy law firm the Institute for Justice also deserves a lot of credit. Its work on this issue has inspired a number of media investigations and moved lawmakers to begin looking into reform.