Making It Harder For Cops To Take Your Stuff

That’s what Eric Holder did last week. Drum is pleased:

It’s bad enough that civil asset forfeiture even exists as a legal doctrine, but it’s beyond comprehension that the feds would actively encourage abuse of forfeiture laws by creating a program that allows police departments to keep most of the money they seize. This is practically an invitation to steal money from innocent people. So good for Holder for ending this program. If cops are going to be allowed to seize property from people they merely suspect of crimes—or, in some cases, pretend to suspect of crimes, wink wink nudge nudge—they sure as hell shouldn’t be allowed to keep the stuff and sell it in order to buy themselves a bunch of shiny new toys.

McArdle also welcomes the news:

Libertarians like to say that the nearest thing to immortality on this earth is a government program. Programs change their names or get absorbed into bigger programs, but they rarely just die. I’m pleased to see that there’s an exception to this rule, and it’s one that really matters. We’re all a little bit more free today.

Balko insists that “this new policy is one conservatives should love”:

First and most obvious, civil asset forfeiture is a major affront to property rights, a principle conservatives hold dear. The idea that the government can take your property without ever even charging you with a crime, much less convicting you of one, is a pretty appalling abuse of power. And sure enough, much of the effort to reform these laws over the years has come from the right. (Although to be fair, the laws themselves were pushed heavily by the Reagan administration as part of the 1980s drug war — albeit with little-to-no resistance from Democrats).

The other reason the right should cheer this move is that it’s basically a nod to federalism. Several state legislatures saw civil asset forfeiture as unfair and moved to make it fairer. The suitable sharing program thwarted their efforts. Holder’s move ends that interference. It returns policymaking on this issue to the states. Personally, I think there’s a Fifth Amendment argument to be made that the federal government should actually prevent the states from engaging in the practice. But allowing state legislatures with a conscience to end the practice on their own is a good first step.

Kleiman hopes the new policy has a big impact:

The order excludes federal-state-local task forces, but – if I read it correctly – does include the multi-jurisdictional local task forces where much of the worst mischief has been done; some of those agencies are entirely dependent on forfeiture funds (plus Byrne Grant money) and thus under no control whatever from civilian authorities. There’s more to be done to rein in the forfeiture system, but this is a terrific start.

Jacob Sullum is more skeptical:

Holder’s policy explicitly exempts “seizures by state and local authorities working together with federal authorities in a joint task force,” “seizures by state and local authorities that are the result of joint federal-state investigations or that are coordinated with federal authorities as part of ongoing federal investigations,” and “seizures pursuant to federal seizure warrants, obtained from federal courts to take custody of assets originally seized under state law.”

Since there are hundreds of federally funded “multijurisdictional task forces” across the country, that first exception could prove to be very significant. Holder’s order “does not prohibit the worst uses of the equitable sharing asset forfeiture program, particularly excepting seizures in which there is federal task force participation or direction,” says Eapen Thampy, executive director of Americans for Forfeiture Reform. “As virtually every drug task force I know of has a federal liaison on call, this means business as usual by local law enforcement using civil asset forfeiture through the Equitable Sharing Program to enforce the Controlled Substances Act and other federal statutes. In other words, the exception swallows the rule.”

Even if the new policy ends up having teeth, Leon Neyfakh expects civil asset forfeiture to continue “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.”