Musings: Forfeiting Assets

Attorney General Eric Holder has restricted the use of federal law to seize cars, money, property and other assets without criminal charges and warrants.

The controversial asset forfeiture program was launched three decades ago, allowing law enforcement to seize assets from suspected drug dealers and others in the "war on drugs." But the program has been rife with abuse, and an investigation by the Washington Post revealed that federal agencies and police trainers were encouraging cops to seize cash from motorists in the aftermath of the 9-11 attacks.

The paper learned that since Sept. 11. 2001, local and state police made 61,998 seizures worth nearly $2.5 billion — all without search warrants or indictments. As the Post reports:

The Post found that local and state police routinely pulled over drivers for minor traffic infractions, pressed them to agree to warrantless searches and seized large amounts of cash without evidence of wrongdoing. The law forces the owners to prove their property was legally acquired in order to get it back.

Regional police typically shared the proceeds in an 80-20 split with federal agencies, a practice now mostly barred under Holder's order. But states are free to conduct their own asset forfeiture programs.

I checked in with Kauai Prosecutor Justin Kollar and Police Chief Darryl Perry to find out how Holder's decision will affect asset forfeiture on the Garden Island. It appears that Hawaii law doesn't allow some of the same abuses that plagued the federal program.

As Justin noted:

We have to be able to show that the assets in question actually are tied to a criminal enterprise. If we can't do that, the [state Attorney General's] office won't allow the forfeiture.

Chief Perry said he had been watching the issue closely, anticipating some changes:

The new policy does not apply to seizures by state and local authorities working together with federal authorities in a joint task force and/or seizures made on a federal seizure warrant from a federal court directing law enforcement to take custody of assets seized under state law. It appears that this policy applies only to cases adopted in its entirety by the feds.

At KPD we are using the asset forfeiture funds for training, purchase of new equipment, assist special community programs, etc., but we have to be very frugal and careful not to supplant its use.  By that, I mean we cannot pay for existing positions, equipment, programs, etc., that are already funded by the County.  We’ve been asked to use the funds to pick up the budgetary slack, but we can’t otherwise we would be in violation and we would be fined and possibly, the funds would be taken away.

Some of the things we’re looking at is a one time partial support for the 6 new police officer positions we received from the COPS grant and body cameras.

While the Chief agreed “that from time to time, the law must be scrutinized to be assured that law enforcement is not abusing the statute,” he feels asset seizure can be useful in shutting down illegal activities, such as Silkroad 2.0, “the underbelly of the internet where illegal transactions were taking place involving guns, drugs, human and sex trafficking, terrorist communications, child porn, and the like...involving millions of dollars. This is a good example where seizing assets would be critical to shutting them down.”

Critics of the practice note that even in Hawaii, citizens must bear the burden of proof if they believe their assets were wrongly seized. And if cash or other property has been seized, people often have a hard time funding an expensive legal challenge against the government. The Post found such challenges can take a year or more, and most seizures aren't challenged.

Critics also point out that law enforcement agencies also have strong incentive to seize assets, since they get to keep the money and property.

A report to the Legislature shows that Kauai law enforcement seized cars, cash and other property valued at $187,646 in 2011-12, which represented 35 percent of the statewide total.

And while Hawaii law usually requires a felony offense for asset forfeiture — though it is sometimes used to seize assets in misdemeanor marijuana cases — the state Senate introduced a bill in the 2013 session allowing forfeiture for petty misdemeanors, such as harassment or possession of less than an ounce of cannabis. The bill ultimately failed, but not before chilling civil libertarians and even some county prosecutors.