Forfeiture laws need to be strengthened to promote transparency, protect accused

Civil forfeiture has been getting a lot of attention lately, with large-dollar seizures making headlines in Iowa and other states, and U.S. Attorney General Eric Holder announcing changes in when and how federal law enforcement agents will be allowed to seize property and funds.

Lawmakers have taken notice, too, with several, including Iowa Sen. Chuck Grassley, announcing they'll propose bills that will more permanently change the rules - on the federal level, at least.

Change is warranted, as those headline-grabbing seizures will attest. And while large-dollar forfeitures seem to be the exception, perhaps especially here in Iowa, what we have learned in researching federal and state forfeitures - how they work, how much money and property is involved and where that money goes - is that much can, and should, be done to increase transparency and accountability throughout the system and to protect the rights of the accused.

We agree with the fundamental justification for forfeitures: That crime shouldn't pay. But as they are written, Iowa and federal laws don't go far enough to guarantee an equally important corollary: That those who enforce our laws should not be motivated by a potential payout.

WHAT IS FORFEITURE?

When people involved in criminal activity are caught, there sometimes is property connected to the crime. That may be real property which was used as part of the criminal enterprise (illegal drugs or vehicles, for example), or property resulting from criminal activity (many drug dealers, for instance, will carry cash or weapons). The government has the authority to attempt to take possession of that property in a process known as forfeiture.

The forfeiture process can be complex, including a number of agencies and levels of government. Federal and state laws are broadly written and rely heavily on the discretion of law enforcement and prosecuting attorneys.

Under both federal and Iowa law, for instance, a civil forfeiture case can be established against property whether or not the property's owners are charged with a crime. If the property's value falls below a certain threshold, it can be forfeited administratively, without the involvement of the court. Following this type of property seizure, a certified letter is sent to the property owner, explaining that if the person doesn't respond within 30 days the government will keep the property. Only if the owner contests is the matter heard by a judge.

The standard of evidence for civil and contested administrative cases is 'a preponderance of the evidence,” meaning the court determines it was more likely than not that the property resulted from criminal activity. Because it is a civil case, defendants have no right to a public defender, but must pay for an attorney or represent themselves.

WHAT HAPPENS TO THE MONEY?

In the five years from 2009 and 2013, at least $35 million from state and federal seized assets and cash was deposited in the coffers of Iowa law enforcement departments, task forces and state agencies. Of that figure, roughly $14 million came from state cases (an average of about $3 million per year), while about $21 million was federal (an average of about $4 million each year).

State forfeitures increased during calendar year 2014, with $4.3 million disbursed to local agencies. The overall amount from 2014 is not included in the five-year span above because the full federal report has not yet been released.

These disbursements represent only the local portion of proceeds from some forfeiture cases. Before the funds are passed to local agencies, expenses related to the sale or storage of real property has already been paid, as have lien holders and crime victims. On the federal level, at least 20 percent of net proceeds are kept by the U.S. Department of Justice. In Iowa-based cases, the state justice department keeps 10 percent.

Determining exactly how much money and property is being forfeited in Iowa, or what that money has purchased is a monumental task.

For instance, computer print outs from the Iowa Attorney General's Office show the state's cash-only disbursements by calendar year, broken down by county. Tracking disbursements to individual law enforcement agencies, we were told, could only be accomplished by sifting through the original paper documents.

So we tried another route, through the U.S. Department of Justice's Asset Forfeiture Fund, one of two major federal forfeiture funds, which is organized by fiscal year. The other fund is maintained by the U.S. Department of the Treasury, or IRS, and is not represented in the figures presented above. When viewing the DOJ's fund information, it is easier to see the amount given to individual Iowa agencies.

But seeing what federal money has come in to the Marion Police Department or Johnson County Sheriff's Office, for instance, is only one chapter of the story.

How is that money spent? That's another good question without an easy answer. There is no centralized record of purchases made with these funds.

Instead, each sheriff's office, police department, task force or other collaborative group is individually responsible for its own accounting and only mandated to perform independent audits under extraordinary circumstances, such as when money received from federal forfeitures is more than 25 percent of their local budget or when the agency expends more than $500,000 of forfeiture proceeds during a fiscal year.

There are strict guidelines as to how forfeiture money can be spent, with all purchases primarily tied to the type of activities that are known to end in forfeitures. Police equipment and training are allowable uses. Easing the burden of a local police department's general budget isn't. Forfeiture funds only may be used to pay specific salaries - for instance, funding overtime pay connected to an investigation, the salary of a local DARE officer or the salary of certain task force members.

The rule of thumb, as outlined by federal policy, is that forfeiture funds should be used to augment an agency's budget, not replace portions of it. Priority is to be given to community policing activities, training and operations, and preference bestowed on the types of training and activities related to investigation and seizure.

Although some states have created laws to funnel forfeiture funds to other needs, such as education, the federal government will not disburse funds to local agencies in those states unless the funds are specifically and only tied to law enforcement. Federal rules prohibit even the use of equipment purchased with forfeited funds by non-law enforcement personnel.

Funds may be used to support community-based programs related to law enforcement, such as drug rehabilitation and crime prevention, but such support is capped at no more than 15 percent of what's received. Also, local agencies must support the programs materially, not monetarily. Purchasing supplies on behalf of the program is allowed; handing a check to the program's director for the purchase of supplies is not.

MAKING FORFEITURE FAIR

Earlier this month, U.S. Attorney General Eric Holder instituted a policy change prohibiting some federal adoptions of state and local law enforcement forfeiture cases, but critics say those changes aren't broad enough and don't have the force of law.

Sen. Grassley is part of a bipartisan group currently crafting legislation to address forfeiture.

'We believe that in many circumstances, civil asset forfeiture is a valuable tool in combating serious wrongdoing. However, we have concerns that the government is not using the process fairly and instead is infringing on the rights of small business owners and motorists, some of whom are our constituents,” the lawmakers wrote in a letter to Holder this month.

Grassley has urged Holder to 'implement additional procedural safeguards” to make sure property is not 'swept up in overzealous asset forfeiture.”

We were not able to identify any movement on the state level that would reform Iowa's forfeiture laws, but we urge lawmakers to take up the issue. Reforms we feel would help strengthen state and federal law while protecting those accused include:

' Removing mandates that require forfeiture proceeds be used only for specific law enforcement purposes. Allowing forfeiture funds to be directed back into the same activities that produced them creates at least the appearance of, and at worst an incentive for, policing for profit.

' Increasing the standard of proof in forfeiture cases from 'preponderance of the evidence” to 'clear and convincing” evidence - a standard that is greater than 51 percent, but less onerous than the criminal conviction standard of 'beyond a reasonable doubt.”

' Increasing transparency so that forfeiture funds are easily tracked and their use accounted for by the public. This includes an agency-by-agency breakdown of seized property, expenses paid, disbursements back to local agencies and purchases ultimately made with those funds.

' Continued review to ensure forfeiture law is working as intended.

For all the troubling stories emerging about forfeiture, it still - when properly regulated and monitored - can be an important tool to punish and deter criminals. As Kevin Techau, U.S. Attorney for the Northern District of Iowa, told us, 'It is part of our responsibility to keep profit out of crime.”

Of course, that responsibility flows both ways.

And with meaningful reform, we can ensure the law lives up to that spirit.

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