WASHINGTON (AP) — The Trump administration will soon restore the ability of police to seize suspects' money and property with federal help, but The Associated Press has learned the policy will come with a series of new provisions aimed at preventing the types of abuse that led the Obama Justice Department to severely curtail the practice.
At issue is asset forfeiture, which has been criticized because it allows law enforcement to take possessions without criminal convictions or, in some cases, indictments. The policy to be rolled out Wednesday targets so-called adoptive forfeiture, which lets local authorities circumvent more-restrictive state laws to seize property under federal law. The proceeds are then shared with federal counterparts.
Former Attorney General Eric Holder significantly limited the practice in response to criticism that it was ripe for abuse, particularly with police seizures of small amounts of cash. Attorney General Jeff Sessions plans to ease those restrictions, but also impose new requirements on when federal law can be used, a senior Justice Department official briefed on the policy said Tuesday.
The official, who spoke to the AP on condition of anonymity, was not authorized to discuss the changes before their unveiling.
Key changes include requiring more detail from police agencies about probable cause justifying a seizure before federal authorities get involved. Also, the Justice Department will have to decide more quickly whether to take on local seizures and also let property owners know their rights and the status of their belongings within 45 days of the seizure, faster than federal law requires.
Another key change will make it harder for police to seize less than $10,000 unless they have a state warrant, have made an arrest related to the seizure, have taken other contraband, such as drugs, along with the money, or the owner has confessed to a crime. Without at least one of those conditions, authorities will need a federal prosecutor's approval to seize it under federal law.
Old rules set that threshold at $5,000, the official said. The old process rarely required a federal prosecutor's sign-off, said Stefan Cassella, a former federal prosecutor and expert on asset forfeiture and money laundering law.
Sessions' support for asset forfeiture is in keeping with his tough-on-crime agenda and aligns with his oft-stated view that the Justice Department's top priority should be helping local law enforcement fight violent crime. Police departments use the seizures for expenses, and some agencies felt Holder's restrictions left them without a critical funding source. When he forecast the rollback of the Holder provision at a conference of district attorneys, the announcement drew applause.
But an embrace of asset forfeiture follows bipartisan efforts to overhaul the practice, and as a growing number of states have made their own laws limiting its use.
Republican Rep. Darrell Issa of California, who sponsored legislation this year to tightly regulate asset forfeiture, told the AP that Sessions' move is "a troubling step backward" that would "bring back a loophole that's become one of the most flagrantly abused provisions of this policy."
"I'm glad that at least some safeguards will be put in place, but their plan to expand civil forfeiture is, really, just as concerning as it was before," Issa said. "Criminals shouldn't be able to keep the proceeds of their crime, but innocent Americans shouldn't lose their right to due process, or their private property rights, in order to make that happen."
As of 2014, more than 20 states set restrictions either by requiring a criminal conviction, increasing the government's burden of proof that property is linked to a crime, or other measures, said Darpana M. Sheth, an attorney at Institute for Justice, which represents defendants in forfeiture cases across the country. Requiring authorities to secure a criminal conviction before they can forfeit property is the only real safeguard against abuse, she said.
"The stories of people having small amounts of cash seized are more infuriating and puzzling to the public and seem to represent some greater injustice," said David Harris, a University of Pittsburgh law professor who studies the topic. Sessions' changes will likely discourage small seizures or at least better document them, he said. But the broader, more pressing problems with asset forfeiture remain because police departments are still too reliant on taking private property as a way to foot their bills, he said.
Up to 80 percent of the proceeds from a seizure can be shared with local agencies under the Justice Department's adoptive forfeiture program. More than $6 billion in forfeited funds has been shared with state and local law enforcement since fiscal year 2000, according to a scathing report in March from the department's inspector general. It found weaknesses throughout the asset forfeiture program, including poor data collection and analysis, and inadequate training of local and state officers.
The new policy mandates more training for local officers whose departments engage in the program, the official said.
Cassella said Holder's restrictions aimed to reserve scarce federal resources for sprawling, complex investigations where the ability to seize assets is critical. But he called it a "blunt instrument" that limited cooperation with state agencies. Sessions' safeguards could go further, he said, but are "a step in the right direction."