On Friday, I posted some analysis of Attorney General Eric Holder’s changes to the equitable-sharing program, which allows local police agencies to circumvent state restrictions on civil asset forfeiture by procuring nominal federal involvement in their investigations, thereby making those investigations governed by more forfeiture-friendly federal law. The feds take 20 percent of the proceeds, then give the rest back to the police.

Since the announcement, at least one police official is expressing his outrage — a pretty good indication that the policy will have a significant effect.

Douglas County [Neb.] Sheriff Tim Dunning said Friday that he fears Holder’s directive will lead to fewer forfeitures and fewer federal drug prosecutions, and to drug traffickers doing less time in state prison than they would in federal facilities.
“This benefits nobody but drug dealers,” Dunning said. “Federal law is a tremendously bigger hammer. I don’t see what hammer we are going to have over these people now.”
Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing. For Douglas County, most forfeitures have been done on Interstate 80, which is a corridor for people delivering drugs east and returning west with drug money, Dunning said. …
It is much more difficult to seize money and property under Nebraska law, which requires law enforcement to have proof beyond a reasonable doubt of a crime compared with only a preponderance of evidence under federal law, Dunning said.
Under Nebraska law, 50 percent of forfeitures are supposed to go to public education, while the rest is routed through the county anti-drug fund. That leaves less money for law enforcement, Dunning said. In the past, Dunning said the Douglas County Sheriff’s Office has used forfeitures to pay for K-9 unit dogs and for renovations at the county crime lab.

As I noted on Friday, equitable sharing is basically a way for the Justice Department and local police agencies to thwart the will of legislatures such as Nebraska’s, which have passed what I’d argue are sensible restrictions on the practice of forfeiture. Dunning is essentially angry that he’ll now be required to follow the laws of his state. That seems like an odd position for a sheriff to take.

I’d also dispute Dunning’s assertions that the new policy will make it more difficult to convict drug dealers. I suppose you could make an argument that the policy will result in fewer resources for police departments, which will then result in fewer resources devoted to drug policing. Of course, removing some of these incentives to devote more resources to drug policing might persuade police agencies to redirect those resources toward crimes like murder, robbery, assault, and theft — crimes with actual victims. That may well make the community safer.

But even if you support the drug war, you should be concerned about civil forfeiture. The practice can create some really bizarre incentives. For example, as I’ve written before here at The Watch, numerous news reports have found that drug cops patrolling the highways are more likely to pull over suspected drug couriers as they’re leaving major metropolitan areas than as they’re entering them. The reason is simple: As they enter, they’re more likely to be carrying drugs. As they’re leaving, they’re more likely to be carrying cash. Forfeiture provides an incentive for the police to wait until the drugs have been sold.

Civil forfeiture can also influence how prosecutors charge drug cases. Because the burden of proof for civil forfeiture is so much lower than for criminal forfeiture, prosecutors can be tempted to drop criminal charges in exchange for an agreement from the suspect to sign over a bunch of cash, or a few cars, or a home. The police and prosecutors keep the bounty, the criminal goes free. The negotiations are supposed to be kept separate, but defense attorneys will tell you that it happens, and not infrequently.

I also noted Friday that there are some loopholes in the new policy. One grants an exception to joint task forces, in which state and/or local police officials were together with a federal agency on an investigation. The language isn’t clear, but if the exception requires active involvement of federal law enforcement personnel, it’s not quite as big a loophole. But if the exception applies to the hundreds of federally funded anti-drug task forces across the country, it’s a much bigger deal. In an interview with Reason’s Jacob Sullum, Eapen Thampy, head of the advocacy group Americans for Forfeiture Reform, fears it may be the latter.

As virtually every drug task force I know of has a federal liaison on call, this means business as usual by local law enforcement using civil asset forfeiture through the Equitable Sharing Program to enforce the Controlled Substances Act and other federal statutes. In other words, the exception swallows the rule.

In a statement released Friday, the libertarian advocacy law firm Institute for Justice, which has done about as much as any other organization to fight civil forfeiture, had qualified praise for Holder.

Today’s announced policy would stop the process of adoption, where state and local officials use federal law to forfeit property without charging owners with a crime and then profit from those forfeitures, regardless of whether those forfeitures are permitted under state law. But the new policy leaves open a significant loophole, as state and local law enforcement can still partner with federal agents through joint task forces for forfeitures not permitted under state law, and state and local law enforcement can use such task forces to claim forfeiture proceeds they would not be entitled to under state law. Moreover, the federal government can still pursue its own civil forfeiture actions, where property owners face very significant burdens. And the policy does not change state forfeiture laws, many of which burden property owners and permit policing for profit.

The fundamental unfairness of civil asset forfeiture is its basis on the legal fiction that a piece of property can be guilty of a crime. Therefore, forfeiture proceedings are civil, not criminal. This means you can lose your property despite never being convicted of a crime. In fact, in most civil forfeiture cases, the owner of the property is never even charged. Holder’s trying to trim the abuses, but law enforcement agencies at every level are too dependent on the lucre to cut out the process completely. Since the announcement, a few readers have asked on social media what would need to be done to eliminate the practice. It’s pretty simple: Congress could pass a law to tomorrow to require a criminal conviction before the government can keep seized assets. That would end civil forfeiture at the federal level. Any state legislature could do the same thing to end it within a particular state.

There’s also a lesson here about how difficult it can be to undo bad laws. These forfeiture laws were mostly passed at the height of 1980s drug-war panic, usually with little debate and by overwhelming majorities. Although most people are aghast when they hear how civil forfeiture work in practice, it has taken decades of persistent court challenges from groups like IJ and the ACLU, activism from advocacy groups, investigative reporting from media organizations and victims coming forward with their stories to get even modest reforms. I think Holder’s new policy is important, but it does contain some potentially large loopholes, and it could be undone by the next attorney general or the next administration.

It’s very easy to demand politicians “do something” or “do anything” when we’re in the middle of a crisis, real or perceived. But rash legislating can have prolonged, devastating consequences. Forfeiture made police agencies dependent on the bounty of seized property. What began as an unexpected injection of cash eventually became a line item in the “revenue” column of police budgets. That created a pretty powerful constituency invested in preserving the status quo. Mayors and city councils could also become dependent — the portion of police budgets that comes from proceeds is a portion the city can spend elsewhere. Now, any politician who wants to reform civil forfeiture laws risks the wrath of police organizations and their supporters.

We should be cognizant of how easy it can be to give up our civil liberties in times of crisis. We need to remember that it’s usually a hell of a struggle to win them back.