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How Joe Biden and Merrick Garland Can Help States with Justice Reform

Ending the corrupt practice of civil asset forfeiture should be a top priority for state governments—but federal reform is needed, too.
by Dan King
February 25, 2021
How Joe Biden and Merrick Garland Can Help States with Justice Reform
Merrick Garland in 2016 (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)

Lawmakers in South Carolina, Hawaii, and Arizona have all recently moved forward on legislation to reform civil asset forfeiture—the practice through which law enforcement can seize someone’s property without even charging them with a crime. This reform push, which should be seen in the broader context of America’s reckoning with police abuse and misconduct, is good news. Civil asset forfeiture not only deprives Americans of their property and strips them of their due process rights, it also creates a perverse incentive for overpolicing minor crimes—particularly drug crimes—with the hopes of making some money.

But even in states with strong restrictions on police use of civil asset forfeiture, there is a federal loophole that is often abused, called the Equitable Sharing Program. This federal program, which is run by the Department of Justice (DOJ) and the Department of Treasury, effectively allows state and local law enforcement to circumvent state-level regulations restricting civil asset forfeiture by partnering with federal agencies. At the end of the day, the localities get to keep 80 percent of the proceeds.

Often it’s states with the strictest regulations on civil asset forfeiture that partner with the feds most often through equitable sharing. Take North Carolina, for example. The Tar Heel State has one of the strongest laws protecting against asset forfeiture abuse in the country, requiring law enforcement to receive a criminal conviction before taking a suspect’s property (with the exception of racketeering cases). However, the Institute for Justice found that North Carolina participates in the Equitable Sharing Program more than all but six states. In 2020, DOJ gave North Carolina police departments more than $6.5 million through the Equitable Sharing Program. By contrast, South Dakota, the state which uses equitable sharing the least, only brought in $2,670 worth of forfeited goods.

Recently, the police department in Mooresville, N.C. came under fire after officials seized more than $16,000 in cash from a nonviolent drug offender and sent it to Customs and Border Patrol, seemingly with the goal of avoiding compliance with North Carolina law. The good news in this case is that a judge demanded the department give the suspect his money back, and threatened to jail city employees if they refused to comply.

Under the Obama administration, and particularly Attorney General Eric Holder, there was some appetite for reforming federal asset forfeiture practices. In December 2015, DOJ announced that it would be pausing its participation in the program, but sadly, a mere three months later, the agency had reinvigorated the program.

During the Trump years, the program continued to be used by state and local law enforcement agencies eager to profit off policing. This should come as no surprise, as both of Trump’s attorneys general, Jeff Sessions and Bill Barr, are huge proponents of civil asset forfeiture. Barr went as far as calling the program a “valuable tool.”

Barr was unclear about just how civil asset forfeiture is valuable, but presumably he meant it is valuable in bringing in revenue to law enforcement agencies. It certainly is not valuable in the sense of serving the public good or aiding the cause of justice. A multi-state analysis published by the Institute of Justice this month found that more forfeiture proceeds do not help police solve crimes and do not lead to decreases in drug use, two of the most frequently cited defenses of this abusive practice. The report concluded that “forfeiture fails to serve the public good, all while violating basic rights to property and due process.”

Moving forward, it’s unclear what direction President Joe Biden will go on this issue. While Biden has indicated his support for criminal justice reform, his pick for attorney general, Merrick Garland, has a pretty mixed record on similar due process issues. Notably, he sided with the Drug Enforcement Administration (DEA) in a case called Tourus Records v. DEA, in which a record company was attempting to recoup assets that were seized by the DEA. The seizure occurred when a DEA agent pulled over a company van that he observed swerving, and proceeded to take more than $50,000 in cash and 50 compact discs. Tourus filed a claim that the forfeited assets belonged to the company, and claimed indigency in order to avoid the $5,000 fee required to contest a forfeiture claim at that time. Garland held that the DEA was within its rights to deny Tourus’s claim. While this isn’t an outright forfeiture case, it is an indicator of Garland’s general attitude of deferring to government actors.

Unfortunately, Garland’s two-day confirmation hearing in the Senate Judiciary Committee this week gave us no indication of the nominee’s thoughts on asset forfeiture or the Equitable Sharing Program. Democrats spent most of their time questioning Garland on how he plans to go about investigating the Capitol riot of Jan. 6 and white supremacist terrorism, which he called a top priority. Meanwhile, 2024 Republican presidential hopefuls, like Sens. Ted Cruz and Josh Hawley, predictably focused most of their questioning on Hunter Biden, John Durham’s investigation into the origins of the Trump-Russia Investigation, and antitrust enforcement against “Big Tech.” Unless a senator submits a written question on civil asset forfeiture, we won’t know Garland’s stance until he’s confirmed.

Garland’s confirmation is all but guaranteed, and will likely be bipartisan, as Sen. Thom Tillis pledged his support during Tuesday’s hearing. If Garland wants to help Biden make good on a campaign promise of criminal justice reform, ending the Equitable Sharing Program would be a massive first step. State-level civil asset forfeiture reform is crucial, and has a clear benefit to innocent Americans. The federal government needs to do its part, too.

Dan King

Dan King is a senior contributor at Young Voices, where he covers civil liberties and criminal justice reform. His work has appeared in Reason, the American Conservative, the Week, and the Weekly Standard.