In a surprising report final week, The Intercept—an investigative reporting outlet—launched parts of the Immigration and Customs Enforcement Homeland Security Investigations “Asset Forfeiture Handbook,” the inner guide detailing how and why federal brokers ought to seize money and property utilizing highly effective asset forfeiture legal guidelines.
From what we’ve seen of the guide, the quick reply to that query appears to be: Federal brokers must be seizing property to earn a living.
Civil asset forfeiture legal guidelines enable legislation enforcement companies to grab property they allege was concerned in against the law, usually and not using a warrant and with none felony prices being filed.
Once the property is seized, the property proprietor should show, in essence, his personal innocence—a whole reversal of the presumption of innocence discovered within the felony legislation.
This is each troublesome and costly since, amongst civil forfeiture’s many due course of deficiencies is a scarcity of assured counsel. Many harmless individuals are compelled to desert their cash or property for the straightforward cause that hiring an lawyer prices greater than the worth of what was taken, and the percentages of prevailing are, at any charge, low.
Agencies, in the meantime, hold the proceeds. These funds increase their budgets, and could also be spent with out particular legislative approval or oversight. In different phrases, authorities companies can seize their method to greater budgets.
The majority of those forfeitures by no means make it to the courthouse. They stay and die within the bowels of a authorities company, which makes rigorous evaluation of the procedures these companies use to control seizures and forfeitures all of the extra essential.
The Driving Focus: Seizing a Bigger Budget
The Intercept sadly opted to not launch the total 71-page Homeland Security Investigations handbook (although ICE confirmed it’s real and presently in impact), however the parts that have been launched reveal a disturbing deal with the revenue-generating energy of forfeiture.
The handbook asserts the important position performed by civil forfeiture proceeds in “serving to to fund future legislation enforcement actions … that [Homeland Security Investigations] would in any other case be unable to fund.”
To that finish, the guide instructs brokers to focus solely on worthwhile seizures.
“As a normal rule, if complete liabilities and prices incurred in seizing an actual property or enterprise exceed the worth of the property, the property shouldn’t be seized,” the handbook declares. Agents are suggested that pursuing unprofitable seizures is a “waste [of] instigative time and sources.”
In studying these excerpts, it’s clear that the ICE guide locations an emphasis on making a revenue and enhancing company budgets, and never on the potential evidentiary worth of the seized property to make a felony case.
Indeed, the emphasis seems to be on seizing property whatever the means to finally make a felony case.
Fleecing the Innocent
Also of secondary significance, based on the ICE guide, is the guilt of the property proprietor. The guide states:
[There] could also be third-party curiosity[s] that may prevail in a felony case, however wouldn’t survive in a civil continuing, making the civil continuing important to forfeiture. … Under felony forfeiture, that property proprietor can be entitled to the return of the property. Under civil forfeiture, nonetheless, the proprietor would lose his or her curiosity to the federal government.
Who are these “third-party pursuits” ICE refers to?
They are folks like Russ Caswell, whose motel was seized as a result of a small variety of his friends used or offered medication on the premises. Caswell labored carefully with police, however the authorities nonetheless got here after him.
A Drug Enforcement Administration agent admitted throughout a deposition that the motel’s $2.1 million valuation performed a central position within the resolution to grab it.
They are additionally folks like Chris and Markela Sourovelis, who almost misplaced their Philadelphia house as a result of their son offered a small quantity of heroin out of the property. The metropolis’s response was to attempt to render your entire household homeless.
Such disproportionate penalties leveled towards individuals who didn’t even commit against the law within the first place is essentially unfair and constitutes, within the eyes of many individuals throughout the political spectrum, a gross miscarriage of justice.
The ICE forfeiture information takes a distinct view. ICE brokers are directed to commit appreciable time and a spotlight to tying houses and different actual property to alleged wrongdoing.
This extends to wiretapping telephones as a result of merely discussing felony exercise over a phone line is perhaps legally enough to justify seizing your entire house.
Agents are taught to work with actual property appraisers, to conduct walk-throughs, and meticulously scour monetary data. The appraisal course of is crucial to the choice to grab property, a judgement that’s made by specialists assigned to the Asset Identification and Removal Group.
These specialists are judged based mostly on the amount and high quality of the instances they oversee—an incentive construction positive to drive up using forfeiture.
Counting the Goods
If the message to brokers is “convey house the bacon,” plainly message was acquired.
According to a 2014 report from the Government Accountability Office, the Department of Homeland Security generated $3.6 billion in forfeiture income from 2003 to 2013. From 2007 on, ICE was “persistently” liable for roughly half of your entire division’s forfeiture proceeds.
About $1.2 billion of this haul was directed again to federal, state, and native legislation enforcement companies by the equitable sharing program.
Here once more, ICE outperformed its friends, accounting for “over 90 p.c of complete [Homeland Security] obligations for equitable sharing funds,” the overwhelming majority of which went to state and native companions.
Equitable sharing has come underneath substantial scrutiny lately for usurping conventional state authority over legislation enforcement features. In three years, 24 states have outlawed or restricted using civil forfeiture.
These hard-won, pro-property rights victories are severely undermined as long as companies can merely bypass restrictive state legal guidelines by turning to the federal program.
Toss the Handbook
For years, a big, rising, and bipartisan group of reformers and advocates have slammed civil forfeiture’s lax procedural safeguards, famous abuses, and the potential for legislation enforcement profiteering.
Indeed, the flexibility of the monetary incentive to warp legislation enforcement priorities has been properly documented for a while, resulting in weird outcomes like officers releasing seemingly criminals in alternate for his or her cash, or permitting medication into cities in order that drug proceeds might be seized later.
With the discharge of this guide, it could seem that many of those excesses are usually not the results of “unhealthy apples,” as forfeiture supporters often insist, however are deliberate, by-the-book forfeiture actions.
If that’s the case, it’s time to rewrite the e-book.
Congress is presently debating laws that may handle these points. The DUE PROCESS Act would introduce new procedural protections to forfeiture legislation, serving to to make sure that harmless individuals are not victimized by a tortuous, imbalanced system.
The FAIR Act would go additional, eradicating as soon as and for all of the forfeiture monetary incentive.
If legislators want any additional proof of simply how far forfeiture has strayed from its unique and slender function, contemplate this quote, given to The Intercept by former Assistant U.S. Attorney Robert Gifford, who dealt with ICE forfeiture instances:
I mentioned I’d help it so long as it was not a retired mother and pop working a little bit flea market desk on the weekend. But that was precisely who they have been going after.
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