The Office of Inspector General has completed an audit
of the DEA's adoptive seizure program. Reason
hones in on the number of civil and administrative forfeiture and AFR
has a few notes as well.
The stated objective of the study was "to assess the
design and implementation of the DEA’s adoptive seizure process" and I
can't help but feel that the study conducted was woefully inadequate to draw
any kind of meaningful conclusion about the adoptive forfeiture process. The
testing and sampling lacked the depth required to provide either the public or
the DEA anything other than a superficial impression of the adoptive forfeiture
process.
The are a myriad of issues with the report that cripple its
usefulness. The sample of cases/assets pulled by the investigators were culled
from a single division of the DEA, which covered only 4 states: Georgia,
Tennessee, North Carolina, and South Carolina. The report does not fully
explain how cases were selected, nor does it explain why 58 assets that were
subject to preliminary testing were not included in the detailed testing phase.
The final testing sample consisted of only 63 adoptive assets. How
representative of the process those 63 cases are is decidedly unknown, no
context is given, nor a total count from which they were pulled.
The testing phase of the study consisted of comparing
adoption requests with guidelines set in the DEA manual. Under DEA guidelines,
the field manager reviewing an adoption request from a state or local agency
must consider several factors before approving the adoption. Most notably the
manager must consider whether or not a state/local prosecutor has declined to
move forward with the forfeiture in state court. Twenty-three of the 63 cases
responded to the question with a "No", a response which interviewees
was due to the prosecutor either not declining to move ahead (obviously), there
was not a "sufficient amount of drugs" associated with the seizure to
move ahead in state court (a bald-faced way for local entities to skirt state
law), or the state/local prosecutor only handles criminal cases and the adopted
assets were forfeit under through civil or administrative procedure.
Unfortunately, the states these cases were pulled from do not require local law
enforcement to take the case to a local prosecutor before transferring it to
the feds so the purpose of this test is puzzling.
Another important factor for the field manager to consider
is whether or not the case satisfies the fed's burden of proof in a forfeiture
hearing. This is done by considering three aspects of the seizure; if it is the
product of a federal or state judicial warrant, an arrest was made for a felony
violation of state law or the federal Constolled Substances Act, and if drugs
or other contraband were confiscated at the time the property was seized.
Twenty-two of the 63 requests satisfied atleast one of the three conditions.
The remaining 41 cases were approved by a legal team at DEA headquarters.
The implication here, as
Scott Meiner points out at AFR, is that those remaining cases were approved
despite lacking all of the above. More puzzling, however, is the way the
research team treats this aspect of the adoption process. They responded to
this discovery by reviewing supporting documentation for those 41 cases to
"determine whether there was a record that probable cause had been established"
but never attempted to determine if the information actually a established a
legally sufficient amount of probable cause. Moreover, they do not look into
the process used by DEA headquarters to approve those forfeitures, citing a
desire to focus on field agents. This strikes me as either lazy, shortsighted,
or both. If two-thirds of your cases are deemed to lack a sufficient amount of
evidence to establish a burden of proof by agents in the field and are then
passed on to the DEA's crack legal team for approval and you can't be bothered
to dig into the process used at DEA headquarters then a very significant
portion of the adoptive forfeiture process is being neglected They make no
notes about what background information was found and the reasons those adoption
requests were approved ostensibly become yet another mystery of the forfeiture
process.
The investigators conclude that the DEA generally follows
its internal guidelines and controls, and makes three recommendations
regarding record keeping. Suitably, the recommendations are all rather droll
bureaucratic adjustments to paperwork.The investigators cite a need for more
complete records and recommend DEA create additional records documenting denied
adoption requests. They also suggest changes to adoption request paperwork to
"include questions pertaining to whether state and local law enforcement
agencies followed state forfeiture laws, if applicable, before seeking a
federal adoption." The final recommendation relates to equitable sharing
requests left pending due to problems with the requesting agency (for example,
suspension from the program) and records not being updated in the computer
system.. The DEA concurred with all three recommendations in their response to
the report.
