UPDATE — 7/22/2017, 2:37 p.m. EDT: The Intercept recently reported that DOJ has reopened a loophole in the federal civil asset forfeiture program which allows state and local law enforcement to override laws which ban police from seizing valuables from individuals suspected of committing a crime.
While the Justice Department program has been active since the 1980s, the Obama administration closed the loophole which effectively nullified state law in 2015.
Republican Sens. Rand Paul and Mike Lee issued statements condemning DOJ’s action Wednesday, arguing the program violates the Fifth Amendment’s “due process ” clause.
A new report published Tuesday by the Institute of Justice entitled “Policing for Profit”, finds a “meteoric, exponential increase” in civil asset forfeiture since 2008. Specifically, forfeiture funds of the Department of Justice (DOJ) and Treasury Department have tripled from less than $1.5 billion seven years ago, to $4.5 billion in 2014.
The figures represent the total amount of dollars after any expenditures such as repayment to fraud victims.
The concern among federal lawmakers, as well as advocacy groups on both ends of the political spectrum, is that asset seizure programs both at the federal and state levels, have gone too far. Often, property is taken from individuals who are only suspected of committing a crime, but haven’t been formally charged.
“Forfeiture is an attractive way to keep revenue streams flowing when budgets are tight,” said report co-author Dick Carpenter. The increase in seizures may be because, “2008 to 2014 were some lean economic years.”
DOJ’s Asset Forfeiture Fund was created by an amendment to the Comprehensive Drug Abuse Prevention and Control Act during the federal government’s “war on drugs” campaign of the 1980’s, giving national law enforcement agencies a monetary incentive to target distributors of illegal substances.
In 2007, the chief of DOJ’s Asset Forfeiture and Money Laundering Division wrote, “(This program) is a nationwide law enforcement initiative that removed the tools of crime from criminal organizations. The stakes are high. The national security and lives of Americans are at risk.”
Such a program, like any other public initiative, is subject to abuse.
In February 2014, for example, the Drug Enforcement Agency (DEA) seized $11,000 from the luggage of a 24 year-old college student at Cincinnati/Northern Kentucky International Airport because agents suspected the cash came from illegal drug sales as the luggage smelled like marijuana.
Although the DEA lacked enough evidence to charge the suspect with a crime, 11 law enforcement agencies not involved with the case formally requested a share of the suspects’ money under the federal asset forfeiture program.
The Institute of Justice’s report also analyzed asset seizure practices at the state-level, finding that 25 states including Pennsylvania, New Jersey, Virginia, Georgia, and Massachusetts, allow their law enforcement agencies to keep 100 percent of seized assets.
In six states — Maine, Wisconsin, Indiana, Missouri, Maryland, North Carolina — all property seized assets go to state general funds.
What’s more is that the target of these seizures can hardly be said to be “criminal organizations”, as a June 2015 report by the ACLU found that the median amount seized by law enforcement in Philadelphia to be $192.
Similarly, the Institute of Justice found the median amount seized in Illinois to be $530, Tennessee — $502, and Minnesota — $451. All three states allow police departments to keep at least 80 percent of the assets.
The abuse has not gone unnoticed in Washington however, as Sen. Rand Paul (R-Ky.) introduced the Fifth Amendment Integrity Restoration Act (FAIR Act) in July 2014, which would “increase the federal government’s burden of proof in civil forfeiture proceedings to clear and convincing evidence.”
The bill has yet to submitted for a vote by the Judiciary committee. However, the spirit of that legislation has support from both the ACLU and the Koch brothers, as well as committee Chairman Chuck Grassley (R-Iowa), who has said, “Civil asset forfeiture leads government to exceed its just powers over the governed.”