Eric Holder, on his way out the door, seems to be letting his inner criminal-justice reformer run wild. (Which, of course, he wouldn’t be doing without the OK of his boss, Barack Obama.) Latest target: forfeiture abuse.
The move bans a trick called “adoptive forfeiture.” Here’s how that trick works:
Many states require that forfeited funds be deposited in the state’s general fund, rather than going directly to the law enforcement budget. That’s a sensible provision, avoiding what would otherwise be an obvious conflict of interest. The federal government has the same rule.
BUT (you knew there was a “but” coming, didn’t you?) the federal law allows federal agencies that process a forfeiture to share the proceeds with local law enforcement agencies that contributed to the case. That avoids the state-law process which would otherwise send the money to the general fund. The “share” can be up to 90%, at the discretion of the federal agency.
So when a local agency seizes an asset, instead of handling the forfeiture through the state courts, it goes to the DEA or some other federal outfit, which “adopts” the forfeiture, takes it through federal court, and gives 90% of the take back to the locals. That, of course, creates precisely the conflict of interest the general-fund laws were designed to avoid: cops wind up paying their own salaries by taking cash and other assets from people, who in many cases are never charged with any crime and in some cases are entirely innocent. Unlike a criminal defendant, the victim of a forfeiture has very few procedural rights: no presumption of innocence – in effect, he has to sue to get the money back, and carries the burden of proof -no right to a speedy trial, and no right to publicly paid counsel.
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.