Yesterday, the Department of Justice’s (DOJ) Office of the Inspector General (OIG) released a report criticizing the DOJ’s seizures and forfeitures of cash. According to the report, of the nearly 100,000 cash seizures that occurred since 2007, the Drug Enforcement Administration (DEA) was responsible for 80 percent—a total value of $4.15 billion. Eighty-one percent of those seizures, a total value of $3.2 billion, were forfeited administratively, meaning without charging someone with a crime or any judicial oversight. As the OIG report notes, “asset seizure and forfeiture also present unique potential risks to civil liberties.”

Civil forfeiture allows law enforcement agencies to seize property and cash without any criminal charges. Administrative forfeitures happen automatically when a property owner fails to challenge a seizure in court for any reason, including the inability to afford a lawyer or a missed deadline to file a claim. The property is then forfeited through a simple paper work shuffle, with the seizing agency acting as investigator, prosecutor, and judge. As a form of civil forfeiture, administrative forfeiture presumes the property is guilty and places the burden of proving its innocence on the owner. Also, because this is not a criminal procedure, property owners are not entitled to an attorney. This makes the process prone to abuse.

As the OIG report said:

This is especially true for cash seizures made without a court-issued warrant that result in administrative forfeiture because law enforcement can seize and forfeit this fungible property without charging the owner with a crime and without any court involvement or review.

Eighty-nine percent of cash seizures by the DEA were under $100,000 but they accounted for 30 percent of the total value of cash seized. Those amounts suggest that many seizures are not focused on larger criminal empires. Only about 20 percent of these seizures were challenged and the DEA only returned all or a portion of the cash in less than half of those cases.

The DEA accounted for such a larger portion of federal cash seizures because of the DOJ’s equitable sharing program. Through equitable sharing, property seized by local and state law enforcement agencies can be forfeited federally, and those agencies can retain up to 80 percent of the proceeds. This can be done in one of two ways. First, a local agency could turn over seized property to a federal agency, which can then choose to “adopt” it for federal forfeiture. Otherwise, state and local officers can work a part of a joint task force to make seizures eligible for equitable sharing. Most often these local and state agencies partner with the DEA.

In January 2015, Attorney General Eric Holder issued an order eliminating most opportunities for state and local law enforcement agencies to use adoptive seizures. According to the OIG report, “the elimination of most adoptions contributed to a reduction in the annual number of DEA cash seizures by over half and the annual value of DEA cash seizures by more than a third.”

Although the order had a modest overall impact on most states, Nebraska and North Carolina experienced a major impact. The DEA’s overall adoptive seizure activities accounted only 18 percent of the value of equitable sharing revenues to local and state law enforcement agencies nationwide. By comparison, Nebraska and North Carolina received 91 and 55 percent, respectively, of the value of these revenues from adoptive seizures. The OIG report found, based on interviews with law enforcement officials from these states, “that the primary reason law enforcement in these states has disproportionately used adoptive seizure is that their states’ forfeiture laws restrict law enforcement’s use of forfeiture.”

The Institute for Justice (IJ) report, Policing for Profit, which was cited in the OIG report, found from 2000 to 2013 the DOJ’s equitable sharing program generated $4.7 billion for state and local agencies.

Moreover, the OIG report also criticized the lack of transparency and accountability by the DOJ.

We found that the Department and its investigative components could determine how often seizure and forfeiture advance or relate to criminal investigations only by performing a manual, case-by-case review of component case management systems.

In response to the OIG’s report, IJ’s Senior Attorney Darpana Sheth said: