MarApr 2016

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M A R 2 0 1 6 A P R

IS CIVIL FORFEITURE DEAD?

Albert L. DiGiacomo

If civil forfeiture isn’t dead, it is certainly on life support. Major shifts in attitudes of criminal justice scholars, government agencies and the pub- lic have seriously damaged the ability of local law enforcement agencies to continue to supplement their shrinking budgets through the civil asset for- feiture process.

O n January 16, 2015, the U.S. Depart- ment of Justice (DOJ) announced they would no longer accept adopted cases for civil forfeiture unless local police agencies were ac- tively engaged in joint task forces with federal agencies. 1 This applies to municipal, county and even to state law enforcement agencies. In a more recent and dismal announcement from the DOJ on December 21, 2015, equitable sharing funds to local, state, and tribal agencies have been suspended for the foreseeable future due to budget considerations. 2 This unilateral action by the DOJ took the IACP by surprise; and not a welcomed surprise. IACP’s recent comment on this program modification was “given the immense impact that this decision will have on agencies throughout the country, it is simply un- conscionable that such a decision could be made without their input”. 3 Value of Asset Forfeiture Historically, asset forfeiture actions are as old as our country. Our early Congress approved forfeitures based on British maritime laws as way of ensuring tariffs and taxes were paid to support

the new republic. During the Prohibition Years, government forfeiture was used to seize equip- ment as a way of hampering the bootlegging industry. However, the modern use of civil asset forfeiture arose from the emerging illegal drug trade in the 1980s’. The 1984 Comprehensive Crime Control Act allowed equitable sharing of forfeited assets between federal and local law en- forcement agencies. State agencies also created their own form of civil asset forfeiture. There is no question of the inherent value of civil forfeiture when dealing with transna- tional drug cartels where seizing assets within the U.S. borders can be the only achievable action when criminal prosecution is not likely. And no one seems to object when civilly forfeit- ed funds are returned to investors after they have been swindled through sophisticated ponzis and other financial crimes. What Is Civil Asset Forfeiture? Asset forfeiture, specifically civil asset for- feiture, has become a steady source of funds for police departments for the past two decades. The

civil asset forfeiture process is a legal action placed against property (in rem), meaning “against the property,” not the individual (in personam), “against the person.” This legal distinction allows forfeiture hearings to ac- cept a lower standard of proof that the prop- erty was a tool or proceed of a specific illegal activity. This separate action against property can result in forfeiture regardless of a criminal conviction for the underlying facts surround- ing the original seizure. In fact there does not need to be any criminal charges for civil forfeiture to proceed. According to DOJ sta- tistics 78% of all federal forfeitures between 2008 and 2013 were civil forfeitures without criminal prosecutions. 4 Law enforcement agencies have received billions of dollars over the past two decades through state and fed- eral forfeiture actions without the need for criminal convictions. We assumed that this revenue stream would never end. So What Happened? Two of the major areas of recent attacks on civil forfeiture actions involve the actual

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