Reports of the Death of Asset Forfeiture Were Greatly Exaggerated

November 13, 2015

By: Sara Kropf

Asset forfeiture was supposed to be in decline.

The Washington Post published a series of troubling stories about the rising use of asset forfeiture–without warrants or criminal charges–to the tune of $2.5 billion dollars since 2001. Former Attorney General Eric Holder limited its use by state and local law enforcement officers as part of DOJ’s Equitable Sharing Program.

Has forfeiture slowed down? Not really.

DOJ still publicly touts its asset forfeiture numbers. For example, here’s DOJ’s chart (showing over $4.4 billion in assets seized). DOJ is certainly proud of its “accomplishments.”

The Supreme Court heard arguments just this week in Luis v.  United States, a case that addresses whether the government can seize “untainted” assets from a criminal defendant. Untainted assets are those that are unconnected to the alleged crime; tainted assets are those that are connected to the alleged crime. Seizing untainted assets may prevent a defendant from hiring counsel of his choice.

The government, not surprisingly, argued to the Supreme Court that because money is fungible, if the defendant has spent the tainted assets, then the government should be permitted to seize the untainted ones. The justices seemed sympathetic to the government’s argument.

I guess the Sixth Amendment, like the Fourth Amendment, continues to die a long, slow death. (It’s death is not exaggerated.)

Randy Balko (who always writes thoughtful pieces) wrote a short piece today about a recent report issued by the Institute for Justice. The IJ report makes findings that are even more troubling than the Post investigation:

Nationwide, forfeiture revenue has exploded. Since 2001, annual federal forfeiture revenue has increased from less than $500 million to more than $5 billion in 2014—a tenfold increase in just 14 years. And available data show forfeiture revenue across 14 states more than doubling from 2002 to 2013.

And prosecutors are turning to civil forfeiture to overcome the procedural and evidentiary hurdles of criminal forfeiture. According to the IJ report:

The study also finds that when police and prosecutors take property, they overwhelmingly prefer civil forfeiture to its criminal counterpart. Civil forfeiture is easier for law enforcement because it does not require a conviction, while criminal forfeiture does. Data obtained by IJ reveal that the Department of Justice took advantage of easier civil procedures in 87 percent of forfeiture cases from 1997 to 2013.

If the Supreme Court rules in Luis that the government can seize untainted assets as freely as it can seize “tainted” assets, then life is about to get harder for a criminal defendant.

The government will likely seek to seize the assets of every white-collar criminal defendant in a complex case. If the government can effectively force a white-collar defendant to use an overworked public defender rather than a private law firm, why wouldn’t it?

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