Federal Asset Forfeiture

In Forfeiture, White Collar by Jason FreemanLeave a Comment

In the past decade, government forfeitures through the Department of Justice’s Asset Forfeiture Program have ballooned to over $28 billion.  The DOJ, which has authority to seize property associated with violations of federal law through a process known as asset forfeiture, views forfeiture as an important law enforcement tool.  However, particularly because law enforcement officers generally have the authority to seize and forfeit assets without independent judicial oversight (or even charging the owner or possessor of the item with a crime), its increased use raises serious concerns about protecting civil liberties and the potential for erosion of public confidence in law enforcement.  Indeed, it raises fundamental questions about fairness and due process—principles that are at the core of the American system of justice.

To that point, a recent report from the U.S. Department of Justice Office of the Inspector General identified several “specific weaknesses” in the DOJ’s oversight of asset seizure and forfeiture activities.  As part of its most recent study, the OIG reviewed a sample of DEA cash seizures, selected based on the presence of characteristics that made them particularly susceptible to civil liberties concerns—for example, seizures that appeared to have occurred without a court-issued warrant.

Among the shortcomings noted in the report, the OIG “found that the [DOJ] neither formally collects nor evaluates the data necessary to determine whether its seizures and forfeitures advance or relate to federal investigations.”  As a result, the study found, “the DOJ and its investigative components cannot fully evaluate and oversee their seizure and forfeiture activities to ensure that they are used to advance investigations . . . and that they do not present a potential risk to civil liberties.”  Thus, the report emphasized, DOJ should assess “(1) whether [particular] . . . seizures benefit law enforcement efforts and (2) the extent to which [such] . . . seizures present potential risks to civil liberties.”

Drawing on its analysis of the sampled seizures and extrapolating out from its results, the OIG presented four specific recommendations, encouraging the Money Laundering and Asset Recovery Section to work with various agencies and the U.S. Attorney’s Offices to take the following steps to address these concerns:

  1. Develop ways to collect relevant data related to seizure and forfeiture activities sufficient to identify and evaluate whether seizures advance or are related to federal investigations.
  2. Review seizure practices to determine whether more-specific policy guidance and/or training is needed to ensure consistency in seizure operations.
  3. Ensure that state and local task force officers receive training on federal asset seizure and forfeiture laws and component seizure policies before they conduct or participate in federal seizures.
  4. Monitor the effects of the Attorney General’s 2015 Order that eliminated most types of federal adoptions of state and local seizures, and seek to mitigate any negative effects on law enforcement cooperation.

This most recent OIG report is the latest in a series of reviews and investigations related to federal seizure and forfeiture activities.  The topic is a particularly important one given the role that forfeiture plays in law enforcement (both at the federal and state level).

Stay tuned for future posts that will delve into the history of forfeiture in our country and the procedural aspects that govern its use (and potential misuse).

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