Arlington, VA—A cache of documents uncovered by the Institute for Justice today demonstrate that federal law enforcement officials in the Departments of Justice (DOJ) and Treasury are collaborating with local law enforcement organizations in California to undermine efforts to reform the state’s civil forfeiture laws. The California District Attorneys Association is circulating a set of emails from officials with the DOJ and Treasury indicating that the federal government would disqualify the state from receiving funds from the federal Equitable Sharing Program if it passes the pending reforms. The documents also reveal that the DOJ has already disqualified New Mexico from participating in the program, following passage of a sweeping civil forfeiture reform bill this spring.
California legislators are currently debating SB 443, which would—among other important reforms to the state’s civil forfeiture laws—require a federal conviction of a suspect as a prerequisite to forfeiture of the suspect’s property under federal law. Under the state’s current law, local law enforcement officials can bypass the state’s less-lucrative civil forfeiture laws by partnering with the federal government and processing the forfeiture in federal court. Under federal law, no conviction is required and local law enforcement agencies keep 80% of the proceeds of the forfeiture. The bill passed out of the state senate by a vote of 38-1 and two assembly committees. It is set to be debated on the floor of the Assembly this week.
Citing “resources, desire, or technical capability,” Treasury Executive Office for Asset Forfeiture Legal Counsel Melissa Nasrah wrote in an email to Santa Barbara Senior Deputy District Attorney Lee Carter, “I highly doubt our federal agencies can figure out whether a conviction occurred in any timely manner,” and “it seems the legislation, in effect, takes decision-making authority away from Treasury. Accordingly, I think I would still advise our policy officials here that it would be prudent to not share with CA agencies should this law be passed.”
“This is a desperate and cynical attempt to derail civil forfeiture reform in California,” said Institute for Justice Legislative Counsel Lee McGrath. “Discussions of dollars and cents have no place in the debate about criminal justice reform, nor do ‘desire’ or technical incapability on the part of the federal government. These documents demonstrate that despite their public statements in support of some reforms, federal officials are collaborating with local law enforcement officials to derail reform.”
There is no statutory or legal basis for the DOJ and Treasury’s threat to disqualify California if it requires a conviction prior to forfeiting property. Despite that, the DOJ has already disqualified New Mexico from participating in the program. In April, New Mexico Governor Susana Martinez signed a law requiring that all federal civil forfeiture must be deposited into the state’s general fund, rather than individual law enforcement agencies. The law was widely praised as a bold step to end policing for profit.
“These emails make it clear that the DOJ is trying to make an example of New Mexico and ward off other states from curtailing the federal government’s ability to forfeit private property without first obtaining a criminal conviction,” continued McGrath. “There is no public-safety rationale for law enforcement to outsource the prosecution of Californians to the federal government. Police and District Attorneys special interest groups are colluding with the DOJ to undermine California’s sovereignty. The basis for SB 443 is Californians should be regulated by Californians.”
“No one should lose his or her property without being first convicted of a crime,” said Institute for Justice Senior Attorney Scott Bullock. “That’s a basic tenant that most Americans are shocked to learn is being violated daily by law enforcement officials nationwide.”
The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for property rights. The Institute has fought civil forfeiture on behalf of the owners of the Motel Caswell in Massachusetts, the owners of Schott’s Market in Michigan, the owner of a truck seized in Texas, the owner of a restaurant in Iowa, and convenience-store owners on Long Island and in North Carolina. In 2010, IJ published the landmark report on civil forfeiture, Policing for Profit, and in 2015, IJ exposed the IRS’s abuse of structuring laws in Seize First, Question Later: The IRS and Civil Forfeiture. For more information on IJ’s national initiative to end civil forfeiture, visit endforfeiture.com.