Asset Forfeiture Laws

The following article appeared on the website fourthamendment.com on May 12, 2015:

Joseph Rivers was hoping to hit it big. According to the Albuquerque Journal, the aspiring businessman from just outside of Detroit had pulled together $16,000 in seed money to fulfill a lifetime dream of starting a music video company. Last month, Rivers took the first step in that voyage, saying goodbye to the family and friends who had supported him at home and boarding an Amtrak train headed for Los Angeles.

He never made it. From the Albuquerque Journal:

A DEA agent boarded the train at the Albuquerque Amtrak station and began asking various passengers, including Rivers, where they were going and why. When Rivers replied that he was headed to LA to make a music video, the agent asked to search his bags. Rivers complied.

The agent found Rivers's cash, still in a bank envelope. He explained why he had it: He was starting a business in California, and he'd had trouble in the past withdrawing large sums of money from out-of-state banks.

The agents didn't believe him, according to the article. They said they thought the money was involved in some sort of drug activity. Rivers let them call his mother back home to corroborate the story. They didn't believe her, either.

The agents found nothing in Rivers's belongings that indicated that he was involved with the drug trade: no drugs, no guns. They didn't arrest him or charge him with a crime. But they took his cash anyway, every last cent, under the authority of the Justice Department's civil asset forfeiture program.

Rivers's life savings represent just a drop in the Justice Department's multibillion-dollar civil asset forfeiture bucket. Rivers has retained a lawyer in the hope of getting at least some of his money back. Rivers says he suspects he may have been singled out for a search because he was the only black person on that part of the train.

There is no presumption of innocence under civil asset forfeiture laws. Rather, law enforcement officers only need to have a suspicion -- in practice, often a vague one -- that a person is involved with illegal activity in order to seize their property. On the highway, for instance, police may cite things like tinted windows, air fresheners or trash in the car, according to a Washington Post investigation last year.

Attorney General Eric Holder is barring local and state police from using federal law to seize cash, cars and other property without evidence that a crime occurred. The Post's Robert O'Harrow Jr. explains the most sweeping check on police power to confiscate personal property since the seizures began three decades ago. (The Washington Post)

The DEA declined to comment in detail to the Albuquerque Journal's Joline Guierrez Krueger, though it did say that Rivers was not targeted because of his race. The Albuquerque DEA office did not immediately respond to a request by The Washington Post for more information about the case.

Once property has been seized, the burden of proof falls on the defendant to get it back -- even if the cops ultimately never charge them with a crime. "We don’t have to prove that the person is guilty," an Albuquerque DEA agent told the Journal. "It’s that the money is presumed to be guilty."

The practice has proven to be controversial. Earlier this year, then-U.S. Attorney General Eric Holder announced measures restricting the use of some types of civil asset forfeiture. But as the Institute for Justice noted in a February report, these changes only affect a small percentage of forfeitures initiated by local law enforcement agencies, not federal ones like the DEA. About 90 percent of Justice Department seizures won't be affected at all.

Asset forfeiture is lucrative for the DEA. According to their latest notification of seized goods, updated Monday, agents have seized well over $38 million dollars' worth of cash and goods from people in the first few months of this year. Some of the goods may be directly related to ongoing criminal investigations, but most of them are not.

For instance, in fiscal year 2014 Justice Department agencies made a total of $3.9 billion in civil asset seizures, versus only $679 million in criminal asset seizures. In most years since 2008, civil asset forfeitures have accounted for the lion's share of total seizures.

The Obama administration has generally pushed forward on criminal justice reform. Under Holder, who recently resigned as attorney general, the Justice Department took a hands-off approach to state-level marijuana laws, changed its drug sentencing policies and issued new rules to curb racial profiling.

But asset forfeiture has not been targeted much for reform. Asset forfeitures have more than doubled during President Obama's tenure, a Washington Post analysis found last year. The DEA, meanwhile, has been skeptical of the administration's agenda, openly opposing sentencing reforms and marijuana reforms, and defying Congressional bills meant to curb DEA raids on medical marijuana dispensaries.

But with DEA administrator Michele Leonhart stepping down this month under a cloud of controversy, Obama may name a successor who will aim the agency in a different direction.

The irony of Rivers's case is that five days before his money was seized, New Mexico's governor signed into law a bill abolishing civil asset forfeiture in that state. The bill passed unanimously in New Mexico's House and Senate, a sign of the widespread opposition to the practice.

But New Mexico's law only affects state law enforcement officials. As a result, in New Mexico -- and everywhere else, for that matter -- DEA agents will be able to board your train, ask you where you're going and take all your cash if they don't like your story, all without ever charging you with a crime.