Delayed Justice

Attorney General Eric Holder’s reform of civil asset forfeiture is the newest example of Democrats fixing failed policies from the war on drugs.

Money seized during a raid in Los Angeles, Sept. 10, 2014.
Civil forfeiture laws allowed seized assets to be split between federal agencies and police forces. Above, a box of currency seized during a 2014 raid in Los Angeles.

Photo by Justice Department via Reuters

Throughout the 1980s and 1990s, as the United States struggled with a terrible wave of violent crime, an aggressive Democratic Party helped escalate the war on drugs and expand the punitive policies of state and federal governments. Whether these policies actually reduced crime is an open question, but it’s incontestable that they opened the door to mass incarceration, police militarization, and a wide range of easily abused programs.

In the last few years, however, some Democrats—like Attorney General Eric Holder—have tried to mend the mistakes of the past, working with Republicans in Congress to reform federal criminal justice policies. In 2013, Holder announced a plan to sidestep mandatory minimum sentences for low-level drug offenders. The goal, he explained, was to avert the five- to 10-year sentences that had swelled prison populations while harming minority and low-income communities.

On Friday, Holder announced a new reform push aimed at asset forfeiture, a practice that lets authorities confiscate cash and property obtained through illegal means or used for illicit funds. While asset forfeiture has been legal for almost a century, it gained wide use during the 1980s in the war on drugs. As Dara Lind explains for Vox, state and federal asset forfeiture laws have been used to build police “slush funds” that get used for everything “from buying armored cars and military weapons to $600 coffeemakers and party clowns.”

A 1984 law allows state and local police forces to share the proceeds with their federal counterparts, and a Justice Department program called “equitable sharing” helped facilitate these transfers. “Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion,” reports the Washington Post. These funds are split between federal agencies and police forces, with the latter keeping up to 80 percent of the proceeds.

This sounds like a good idea—using criminal property to fund crime-fighting. In practice, however, it’s been a disaster. While citizens are allowed to challenge forfeitures—and while some departments have been sued—the vast majority of asset forfeiture happens with little oversight or accountability. The result is a parade of abuse and corruption, to say nothing of the problems inherent in a program that lets police confiscate property without due process afforded to criminal suspects.

Indeed, according to a September Washington Post investigation, “police have made cash seizures worth almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001.” Likewise, in the New Yorker, reporter Sarah Stillman detailed the extent to which countless people have been trapped by unscrupulous police departments and deprived of thousands of dollars of property and cash:

The police had confiscated a simple gold cross that a woman wore around her neck after pulling her over for a minor traffic violation. No contraband was reported, no criminal charges were filed, and no traffic ticket was issued. That’s how it went in dozens more cases involving cash, cars, and jewelry. A number of files contained slips of paper of a sort he’d never seen before. These were roadside property waivers, improvised by the district attorney, which threatened criminal charges unless drivers agreed to hand over valuables.

Under Holder’s action, the Justice Department will end its equitable sharing program. “With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” said the attorney general in a statement. There are exceptions—local and state police will still receive funds for items like illegal firearms, ammunition, and explosives—but those account for just a fraction of what is collected through the program.

Republicans, who have also begun to shift on these issues, are supportive. “We’re going to have a fairer justice system because of it,” said Iowa Sen. Chuck Grassley, who now chairs the Senate Judiciary Committee. “The rule of law ought to protect innocent people, and civil asset forfeiture hurt a lot of people.” In the House, Rep. James Sensenbrenner, was also positive. “I commend the department for this step and look forward to working with them on comprehensive forfeiture reform that protects Americans’ property rights,” he said. “Equitable sharing has become a tool too often used to bypass state law. Forfeitures should be targeted and must have appropriate procedural protections.”

Yes, state asset forfeiture laws still remain. But those are often less generous than the federal program, which sent funds back to police departments instead of to the state and local general funds. Which is to say that while Holder’s move isn’t a total victory, it’s still an important one, and a key step toward reforming a criminal justice system that—after three decades of a failed war on drugs—has done so much harm.