U.S. Department of Justice Expands Use of Civil and Criminal Asset Forfeiture

The process of asset forfeiture, at least in principle, allows law enforcement to seize property used in the commission of a crime. Officials can sell the property at auction, with the proceeds often going back into law enforcement budgets. As the use of this procedure has grown, however, it has produced many unjust results. During the Obama administration, the Department of Justice (DOJ) sought to limit the use of asset forfeiture by federal law enforcement. The new Attorney General (AG), however, has rescinded the previous administration’s policy and issued a new order that could expand the use of the procedure. This has brought opposition from both parties in Washington, but it is not yet clear to Texas criminal attorneys what impact this order will have.

The principle behind asset forfeiture is to deprive criminals of property used in the commission of crimes, applying the value of that property toward law enforcement activities. In practice, asset forfeiture often strays far from this noble purpose. Criminal asset forfeiture requires a level of proof that is at least somewhat close to the state’s burden of proof in a criminal prosecution. See 18 U.S.C. § 981. Civil asset forfeiture, on the other hand, has a lower burden of proof, does not require an actual conviction for an actual crime in many cases, and does not necessarily require the joinder of the property owner as a party. Id. at § 982. A civil forfeiture case might be styled, for example, United States v. $50,000 in Cash, with the owner of that money nowhere to be found.

A particularly controversial element of federal asset forfeiture is a process known as “adoption.” When state or local police seize property and turn it over to federal authorities, adoption provides for “equitable sharing” of the proceeds of the ensuing forfeiture case. See 28 U.S.C. § 524(c). Most of the proceeds can end up back with state or local law enforcement under this program, creating an incentive for local authorities to use federal forfeiture procedures whenever possible instead of state forfeiture laws that might have more built-in protections for property owners.

The Obama-era DOJ issued AG Order No. 3488-2015 on January 16, 2015. The order prohibited federal adoption of property from state or local authorities, “except for property that directly relates to public safety concerns.” It identified four categories of property that fall under this exception:  “firearms, ammunition, explosives, and property associated with child pornography.” In order to adopt any other type of property, including “vehicles, valuables, and cash,” federal officials must obtain approval from the Assistant AG for the Criminal Division. This was the DOJ’s official policy for over two years.

AG Order 3946-2017, issued on July 19, 2017, expressly rescinds the earlier order. The new order authorizes federal adoption and forfeiture of property seized by state and local authorities “whenever the conduct giving rise to the seizure is in violation of federal law.” This vastly expands the potential scope of federal asset forfeiture, compared to the constraints of the 2015 order, although the new order includes language about “safeguards.” These include “ensuring sufficient evidence of criminal activity” and giving property owners “an opportunity to challenge federal adoptions.”

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Board-certified criminal defense attorney Michael J. Brown has practiced in West Texas for more than two decades, defending people against alleged charges in state and federal court. Contact us online or at (432) 687-5157 today to schedule a confidential consultation with an knowledgeable and experienced advocate for criminal justice.

More Blog Posts:

Study Compares Amount Seized by Law Enforcement through Civil Forfeiture to Amount Stolen by Burglars, Texas Criminal Lawyer Blog, May 28, 2016

Lawsuits Challenge Police Departments’ Civil Forfeiture Practices Around the Country, Texas Criminal Lawyer Blog, March 18, 2016

Motion to Vacate Sentence Alleges Fraud by Federal Law Enforcement Seeking to Seize Assets through Forfeiture, Texas Criminal Lawyer Blog, March 4, 2016


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