UPDATE: I was featured in a WRAL Investigates report available here.
In the wake of The Washington Post‘s extensive coverage of civil asset forfeiture and litigation by groups like the Institute for Justice, Attorney General Holder announced earlier this month Department of Justice policy changes that would curb the use of federal equitable sharing rules are responsible for some of the more egregious civil asset forfeiture abuses.
Civil asset forfeiture as the process by which the government can seize and keep assets even though no crime has been charged. Sometimes civil asset forfeiture is done in conjunction with a criminal prosecution, but since most criminal prosecutions involving assets also have forfeiture provisions, civil asset forfeiture is mostly used (and abused) where there is no criminal prosecution.
North Carolina lacks civil asset forfeiture procedures. This is a good thing. Police can seize assets in conjunction with a criminal prosecution. Those assets can be retained until disposition of the criminal case. But state and local police in North Carolina cannot seize assets through a civil asset forfeiture process under state law.
The problem is that the federal government has very broad civil asset forfeiture laws that allow police and federal agents to seize assets, even where there may be no criminal charges filed. And under what’s known as “Equitable Sharing”, the federal government “partners” with local agencies to allow the local agencies to seize assets under federal law, and the two governments split the “profits.”
Until recently, this equitable sharing program was extended to include local agencies involved in joint investigations or “task forces” with federal agencies, or even in cases where a state or local enforcement agency seized property and requested a federal agency to adopt the seizure and proceed with federal forfeiture.
According to the Department of Justice’s 2009 handbook on equitable sharing, “Federal agencies may adopt such seized property for forfeiture where the conduct giving rise to the seizure is in violation of federal law and where federal law provides for forfeiture.”
Given both the broad nature of federal criminal law and federal forfeiture law, that rule is virtually all-encompassing. Local or state police can always find a federal justification to seize money, even when there is no local or state law that permits seizure.