WASHINGTON ― Over the past decade, the U.S. Drug Enforcement Administration has permanently seized $3.2 billion in cash from individuals who were never charged with a crime, according to a Justice Department inspector general report released Wednesday.
Authorities confiscated this money using a controversial process known as civil asset forfeiture, which allows police to take property ― including vehicles, jewelry, houses and, most commonly, cash ― based solely on the suspicion it’s tied to crime.
Law enforcement officials say civil forfeiture is a crime-fighting tool that allows them to target the financial proceeds of illegal activity, even when they don’t have direct evidence of wrongdoing.
But due to lax reporting standards around civil forfeiture, the extent of those benefits is unclear, the report found. It also raised concern about the DEA’s reliance on interdiction operations along highways and at transportation hubs, as well as the agency’s inconsistent policies and training procedures.
Since 2007, the DEA has taken in $4.15 billion in cash forfeitures. Of that, $3.2 billion ― or 81 percent ― involved cases in which no criminal charges were filed. These sorts of seizures, usually made without a court-issued warrant and without the presence of narcotics, carry the highest risk of violating civil liberties, according to the report. With no independent judicial oversight and weak protections for property owners, opponents argue that members of law enforcement routinely abuse civil forfeiture.
The report sought to probe these issues by taking a closer look at how the DEA takes people’s cash. But the authors encountered a roadblock.
The DEA doesn’t “use aggregate data to evaluate fully and oversee their seizure operations, or to determine whether seizures benefit criminal investigations or the extent to which they may pose potential risks to civil liberties,” the report found.
Investigators instead chose to focus on a sample of 100 DEA cash seizures made without a warrant or the presence of drugs. Of these seizures, 85 were part of interdiction activity at transportation facilities or along highways. The smallest seizure involved $3,000 confiscated at an airport.
Only six of these 85 cases were prompted by pre-existing intelligence about a specific drug crime, and most were associated with cold consent encounters, which involve officers approaching people they suspect of involvement in drug trafficking and asking their permission to conduct a search. The inspector general’s office has criticized this practice as being prone to racial profiling.
In over half of the 100 cases examined, there was no discernible evidence the seizures advanced law enforcement efforts, the report found. In only 44 cases could the DEA say conclusively that the seizures had “advanced or been related to ongoing investigations, resulted in the initiation of new investigations, led to arrests, or led to prosecutions.”
Investigators were also concerned about the lack of uniform training for both federal agents and members of state or local task forces working in cooperation with federal authorities to make seizures.
“While the factual situations vary from case to case, such differences in treatment demonstrate how seizure decisions can appear arbitrary, which in turn can fuel public perception that law enforcement is not using this powerful authority legitimately,” the report read.
These kind of findings undercut the claim that civil forfeiture is vital as a crime-fighting tool.
Darpana Sheth, senior attorney with the Institute for Justice
Civil asset forfeiture has come under bipartisan criticism in recent years, and support for reform is growing at both the state and federal levels. Critics say the practice infringes on people’s due process and property rights by forcing them to engage in costly legal battles to prove their innocence and recover their assets.
Opponents of civil forfeiture also claim it encourages law enforcement to haphazardly seize property rather than focus on public safety. The inspector general’s report shows some evidence of the DEA pursuing civil forfeiture over-aggressively. Although property owners only challenged 20 percent of seizures over the past decade, nearly 40 percent of the contested cases resulted in a full or partial return of assets.
“These kind of findings undercut the claim that civil forfeiture is vital as a crime-fighting tool,” said Darpana Sheth, senior attorney with the Institute for Justice, a libertarian public interest law firm that believes all forfeiture should be tied to a criminal conviction. “The report reaffirms what IJ has been saying all along, about how forfeiture laws create this perverse financial incentive to seize and forfeit property.”
Congress has considered legislation to reform civil forfeiture in recent years, and the latest report appeared to add some urgency to that effort.
“Today’s report by the Inspector General makes it clear that asset forfeiture is in desperate need of reform,” said Rep. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee. “While asset forfeiture is a useful law enforcement tool to fight crime, the current lack of oversight and training poses dangers to Americans’ civil liberties.”
But the acting assistant attorney general of the Justice Department’s Criminal Division, put into place under President Donald Trump, was critical of the report and described asset forfeiture as a “vitally important law enforcement tool” that had helped “fight the current heroin and opioid epidemic that is raging in the United States.”
A 10-page response to the report from acting Assistant Attorney General Kenneth Blanco said the Justice Department had “significant concerns” about the final report. Relying upon a review of the 100 DEA cash seizures had led to “inaccurate or misleading” conclusions, Blanco wrote.
Blanco said the Justice Department was taking another look at a 2015 order from former Attorney General Eric Holder which affected some of the department’s asset forfeiture work by limiting the types of civil forfeiture cases state and local law enforcement could pursue through the federal process.
“The Department is conducting a review of the Attorney General’s 2015 Order to determine all potential negative effects on law enforcement ― federal, state and local,” Blanco wrote. “One key underpinning of that review is that the Department continues to rely on critical cooperation with its state and local law enforcement partners. It is imperative that these partnerships remain strong.”
Both Trump and Attorney General Jeff Sessions seem receptive to the idea of allowing law enforcement to use civil forfeiture more aggressively after police officials complained that their operations had been scaled back in recent years.
But the inspector general’s office said Blanco’s response indicated he didn’t fully appreciate the civil liberties issues at stake.
“While we have long recognized that a well-run asset forfeiture program can be an important law enforcement tool, we believe that the Criminal Division’s comments on our report indicate that it has missed a key point: regardless of the importance of the tool, it must be used appropriately, with effective oversight, and in a way that does not place undue risks on civil liberties,” the office responded in a statement.
“We further believe that the Department has an increased responsibility to protect civil liberties when its investigative components use a tool that permits seizure and forfeiture of property without judicial involvement or apparent connection to investigative activity, and then uses the proceeds of that property as a funding mechanism for law enforcement operations,” the statement continued.
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