WASHINGTON ― The Justice Department on Wednesday reversed an Obama-era policy that had limited law enforcement’s power to take cash and other property from individuals who haven’t been convicted of a crime, and in many cases haven’t been charged with one. But the new policy comes with limitations that Justice Department officials say will protect innocent property owners from potential abuse.
The directive concerns the controversial law enforcement practice known as civil asset forfeiture, which allows police to permanently take property, including cash, vehicles and homes, from suspected criminals, all without ever having to secure a conviction or even charge the owner with a crime. Once forfeited, the proceeds of the property flow back into department coffers.
The new policy pertains specifically to adoptive forfeitures, which then-Attorney General Eric Holder halted in 2015. The practice had allowed state and local law enforcement agencies to seize property and pass the cases off to federal prosecutors, thereby evading stricter state laws on forfeiture and deferring to more lax federal standards. These cases typically involved minimal prior involvement with federal agencies, and returned up to 80 percent of the resulting proceeds back to the department that made the seizure.
Critics had claimed the process was an easily exploited loophole that allowed local law enforcement to circumvent state laws on civil forfeiture. Most states have more restrictive forfeiture laws than the federal government, and some have abolished civil forfeiture all together. In many states, the government must meet a higher standard of proof to successfully forfeit property. In others, the proceeds from forfeitures must go to the state’s education fund instead of law enforcement agencies. A total of 24 states have passed laws limiting the practice, with many changes coming since 2015, amid a growing bipartisan push for reform.
The new Justice Department policy goes into effect immediately, laying out updated “safeguards” requiring legal counsel for the federal agency to review all seizures for compliance with the law. State or local agencies that request seizures or “adoptions” of property must now provide additional information about the probable cause determination justifying the confiscation.
The directive also establishes new protocols for seizures of cash totaling $10,000 or less. It holds that such adoptions are appropriate when the seizure is conducted pursuant to a state warrant, or is accompanied by an arrest relevant to the alleged offense. They’re also permissible when a state or local agency seizes related contraband along with the cash, or when the owner admits the property is criminally derived.
But there’s an exception: Agencies can still adopt these smaller amounts of cash even when these conditions don’t apply, so long as the U.S. attorney’s office first approves the transfer.
The new order also seeks to expedite the adoption process, requiring the seizing state or local agency to request federal adoption within 15 calendar days of the seizure. The federal agency accepting the adoption must also inform “interested parties” within 45 days of the date of seizure, notifying them of their right to challenge the forfeiture. The policy clarifies that these timeframes can be extended if the adoption agency can demonstrate “good cause.”
The final piece of the directive involves enhanced asset forfeiture training for federal law enforcement officers, which will begin in 2018 and take place annually.
Taken together, these additional protections mean the adoptive forfeiture program will be “less aggressive than it was in 2014,” before it was halted, deputy Attorney General Rod Rosenstein told reporters shortly before DOJ hosted an event for law enforcement leaders in Attorney General Jeff Sessions’ office.