Rand Paul Introduces Asset Forfeiture Reform Bill

Rand Paul introduced a landmark bill last Friday that makes several significant changes to federal asset forfeiture law. It aims to remove the profit incentive by depositing sales proceeds in the Treasury's General Fund instead of giving it directly to the seizing agency.  The government must also show a substantial connection between the property owner and the alleged crime, that the owner "intentionally used the property in connection with the offense" or "knowingly consented or was will-fully blind to the use of the property by another in connection with the offense" before forfeiting property.

It also raises the standard of proof for federal prosecutors to meet before forfeiting property. The bill raises the federal court's standard of proof to "clear and convincing evidence", which makes it higher than many states. Radley Balko reports that the bill also requires states to "abide by state law" when they forfeit property, but that language is not in the current bill so it is hard to know what means exactly and if it applies to both financial and procedural aspects of state forfeiture law.

This is pretty big. Asset forfeiture is a big money maker for actors at all levels of government. The federal asset forfeiture fund had more than $2 billion in net deposits in 2013. The Department of Justice made more than $656 million in equitable sharing payments to law enforcement agencies in the 50 states. Law enforcement in New York and California have received more than $1.2 billion through the program between 2000 and 2013.This is not necessarily a bill that will be greeted with open arms by the law enforcement community.

 These changes have been a long time coming. Henry Hyde proposed raising the burden of proof to clear and convincing evidence almost 20 years ago. His reform efforts were stymied and his bill, passed as the Civil Asset Forfeiture Reform Act in 2000, settled for the lower standard of a preponderance of the evidence, which it stands at today. And while it would curb the problems associated with federal adoption, it would not address the myriad problems of state forfeiture laws. This bill represents a lot of progress though and Senator Paul should be commended for taking up the issue.

The Office of the Inspector General's Audit of the DEA's Adoptive Seizure Process

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.