Helicopters Don’t Pay for Themselves

Why Eric Holder’s civil forfeiture decision won’t stop civil forfeiture abuse.

Cash seized during raid in LA
Law enforcement agencies are expected to continue seizing assets until there is comprehensive reform at the state level. Above, boxes of U.S. currency seized during a 2014 raid in Los Angeles.

Photo by Justice Department via Reuters

Attorney General Eric Holder announced Friday that the Justice Department will no longer participate in a controversial program that has long allowed police departments around the country to seize cash and property from people suspected of criminal activity, then send 20 percent of its dollar value to the federal government under a so-called “equitable sharing” program and pump the remaining 80 percent into their own operating budgets.

Holder’s decision to halt the program is being applauded by critics of the practice known as civil asset forfeiture. But experts warn that it’s not enough: While it’s nice that the federal government is washing its hands of “equitable sharing,” law enforcement agencies can be expected to continue seizing people’s cash and other valuables until there is comprehensive reform at the state level.

Civil forfeiture as it existed until Friday was introduced by the federal government in 1985, with noble intentions, as part of the war on drugs. The idea was to incentivize police to target suspected criminals in possession of large sums of ill-begotten riches, so that their money could be diverted to government coffers and then spent in service of the public good. But as time went by, civil forfeiture became a tool of abuse and a source of income on which police departments came to rely: According to the Washington Post, which ran an influential multipart investigation into civil forfeiture last year, police agencies have carried out 61,998 cash seizures under the federal “sharing” program since September 2001, collecting a total of $1.7 billion for themselves and dividing an additional $800 million among various federal agencies. (Police departments used the proceeds on things like surveillance equipment, sniper gear, helicopters, high-tech buses, and $600 coffee makers.)  

The Post series—as well as an excellent New Yorker article from 2013—shined a light on the fact that countless Americans, many of them poor, were essentially being shaken down by local law enforcement officials without ever being charged with crimes, then forced to prove their innocence through a protracted legal process in order to get their money or other assets back. 

In one particularly devastating example highlighted by the Post, a 55-year-old Chinese American man was pulled over for speeding in Alabama and forced to give up $75,000 that he had raised from relatives in order to buy a restaurant. According to the Post, it took almost a year and thousands of dollars in legal fees for the man to get his money back from the authorities.

Holder’s decision to halt the Justice Department’s “equitable sharing” program will certainly put a dent in the civil forfeiture racket. But it won’t come close to eradicating the practice entirely, because the majority of America’s 50 states—42, to be exact—still have laws on the books providing huge incentives for police departments to keep doing it.

According to Louis S. Rulli, a professor at the University of Pennsylvania Law School who has studied civil forfeiture closely, no fewer than 26 states allow police to keep 100 percent of the assets they seize. And Scott Bullock, a senior attorney at the Institute for Justice—the libertarian public interest law farm—says there are 16 others where police keep 50 percent or more.

“The law has to be changed in the states too,” said Bullock. “This closes one window, but you’ve got to close all the windows.”

According to Rulli, the window being closed is not all that big. “The Attorney General’s announcement is certainly very welcome news and an important step toward stemming civil forfeiture abuse, but it is going to have limited impact in states and localities because most seizures of cash, cars, and homes are conducted under the auspices of state law,” he wrote in an email.

The states where Holder’s decision will make a big impact are the handful that have already reformed their civil forfeiture laws, such that all seized assets are funneled not into the pockets of the law enforcement agencies that brought them in but into states’ treasuries or to specific purposes. In Missouri, for instance, all seized assets go toward the state’s education fund. Up to this point, law enforcement agencies in those states have been able to carry out civil forfeiture under the auspices of the federal program, thereby getting their 80 percent despite restrictive state laws. “The federal route was perceived as a way around state limits that let state and local agencies effectively continue what they were doing before: seizing assets and keeping lots of the proceeds, to fund themselves,” wrote David Harris, a professor at the University of Pittsburgh School of Law, in an email. 

It’s in these states that Holder’s decision will have the greatest impact. In the other 42, the gravy train will roll on, at least for now.