Civil asset forfeiture is a controversial law enforcement practice throughout the country. In many jurisdictions, it allows police to seize property that they allege is connected to criminal activity, even if the owner has not been convicted of a crime. Federal law enforcement officials often cooperate with state and local officials and then split the forfeiture proceeds in a process known as “adoption.” During the Obama administration, the U.S. Department of Justice (DOJ) limited the use of federal adoption, but the new Attorney General (AG) reversed this policy earlier this year. This led to an amendment to the 2018 federal spending bill in the U.S. House of Representatives, sponsored by a diverse bipartisan group of legislators, denying funding to the DOJ for forfeiture-related activities barred under President Obama. The House approved the amendment and passed the entire bill, which now awaits action in the Senate. An effort to reform Texas criminal statutes regarding asset forfeiture earlier this year was not successful.
The idea behind asset forfeiture is to deprive criminals of the proceeds of their crimes, but in practice it often involves the seizure of property with little due process. Under federal law, civil forfeiture allows the government to take title to seized property without an underlying criminal conviction. 18 U.S.C. § 981. The owner of the property is typically not named as a party in a civil forfeiture case. Instead, it is treated as an in rem proceeding. Texas law also allows civil forfeiture and states that civil pleading rules apply. Tex. Code Crim. Proc. Art. 59.05(a). A bill introduced during the 2017 Texas legislative session, S.B. 380, would have required a criminal conviction in forfeiture cases, but the bill never advanced out of committee.
Federal adoption procedures allow the federal government to reimburse local law enforcement for the cost of forfeiture proceedings and to split the proceeds from forfeiture cases with local agencies. 28 U.S.C. § 524(c). This has allegedly led to situations in which state and local law enforcement officials in jurisdictions with strict laws limiting asset forfeiture can operate under more lenient federal forfeiture procedures.
In January 2015, then-AG Eric Holder issued Order No. 3488-2015, which ended federal adoption of locally seized property, except for property seized for “public safety concerns.” The order identified four categories of property covered by this exception: “firearms, ammunition, explosives, and property associated with child pornography.” An order issued in July 2017, Order No. 3946-2017, expressly revoked the previous order and reinstated federal adoption “whenever the conduct giving rise to the seizure is in violation of federal law.”
The revocation of AG Holder’s order caused a stir among lawmakers and criminal justice advocates. In September 2017, a Republican Representative introduced an amendment to a major appropriations bill, H.Amdt. 391 to H.R. 3354, which specifically denied funding for activities that had been prohibited by AG Holder’s order. The amendment passed in the House by a voice vote, and the full bill was passed two days later. It is now on the Senate’s calendar.
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 lawyer Michael J. Brown has practiced in West Texas for over two decades, defending people against charges in state and federal courts. To schedule a confidential consultation with a skilled and experienced criminal justice advocate, contact us today online or at (432) 687-5157.
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