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New Federal Asset Forfeiture Changes Will Impact Marijuana Enforcement

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marijuana asset forfeitureAsset forfeiture has been a major issue in the marijuana world. I have had many friends have run ins with law enforcement, just to see all of their money and some of their assets taken even though charges were never filed. Marijuana supporters have pushed for asset forfeiture reform for a long time, and I’m happy to say that today there was some significant movement at the federal level. Of course, state laws still allow for asset forfeiture, but this move is still significant and will no doubt have an impact on unfair marijuana enforcement. Below are press releases about today’s change in federal policy, courtesy of the Drug Policy Alliance (linked) and Law Enforcement Against Prohibition (sent to me via e-mail):

Today, Attorney General Eric Holder issued an order establishing a new policy prohibiting federal agencies from accepting civil asset forfeiture assets seized by state and local law enforcement agencies unless the owner is convicted of a crime. The U.S. Treasury Department, which has its own forfeiture program, is issuing a similar policy.  The Department of Justice becomes involved after a state or local law enforcement agency seizes property pursuant to state law and requests that a federal agency take the seized asset and forfeit it under federal law.

For years, advocates have criticized the Department of Justice practice of accepting and processing seized assets such as cash, cars and other property from state and local law enforcement agencies through its Equitable Sharing Program, which retains 20 percent of the proceeds from the seizure received from a state or local law enforcement agency and returns 80 percent of the proceeds to the state or local law enforcement agency that initiated the seizure. The practice has enabled some state and local law enforcement to bypass state laws that prohibit police departments from keeping the proceeds from civil asset forfeiture or impose a stricter legal standard for seizing property.  The Washington Post has recently documented widespread abuse of this practice, usually as part of carrying out the war on drugs.

Bipartisan support for civil asset forfeiture reform is growing in Congress. Last week, key congressional leaders including Sens. Charles E. Grassley (R-IA) and Mike Lee (R-UT), signed a letter calling on Holder to end the Equitable Sharing program that was the subject of the policy change today.  Sen. Grassley, who chairs the Senate Judiciary Committee, which has oversight over the Equitable Sharing Program, has named civil asset forfeiture as one of his top legislative priorities for this year. In 2014, Sen. Rand Paul (R-KY) introduced legislation to reform asset forfeiture and is expected to soon reintroduce this legislation with bipartisan support. Advocates applaud Attorney General Holder’s decision to prohibit state and local law enforcement from utilizing the Equitable Sharing program for most civil asset forfeiture seizures but urge Congress to pass legislation that makes this reform permanent and fixes federal forfeiture more broadly.

“First, sentencing reform, then marijuana reform, and now asset forfeiture reform,” said Ethan Nadelmann, executive director of the Drug Policy Alliance. “Eric Holder will go down in history for his pivotal role in addressing the excesses and abuses of law enforcement in America.”

Attorney General Eric Holder’s legacy will be his work on criminal justice reform. His accomplishments include:

  • Calling on policymakers at all levels to find ways to reduce the number of people behind bars.
  • Supporting efforts in Congress and the U.S. Sentencing Commission to reduce punitive sentencing.
  • Supporting policies that made the sentences of thousands of prisoners shorter and fairer.
  • Changing how the Justice Department charges people to reduce the application of draconian mandatory minimum sentencing.
  • Establishing guidance allowing states to legalize and regulate marijuana with less federal interference.
  • Establishing guidance to make it easier for banks to deal with state-legalized marijuana businesses.
  • Promoting efforts to re-integrate formerly incarcerated individuals into society and eliminate barriers to successful re-entry.
  • Working to end the “school-to-prison pipeline”, including working with the Departments of Education to scale back “zero tolerance” school discipline policies.
  • Advocating for the restoration of voting rights for the formerly incarcerated.
  • Urging federal law enforcement agencies to identify, train and equip personnel who may interact with a victim of a heroin overdose with the overdose-reversal drug naloxone.

Source: Drug Policy Alliance

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Today Attorney General Eric Holder announced a new policy, effective immediately, that will greatly restrict the ability of state and local police forces to use federal law to seize goods without charging an individual with a crime. Civil asset forfeiture is a process by which authorities seize property alleged to have been involved in a crime, charge the property directly, since goods do not have the same constitutional protections as their owners, and then keep most of the proceeds for departmental use.

For years, this practice has been a major incentive for police to make false charges and seize assets without having to prove “guilt beyond a reasonable doubt,” and instead only meet the lower “preponderance of the evidence” standard of civil cases. Today’s announcement means police departments will still be permitted to make seizures under state and local laws, but they will no longer be able to use the DOJ Equitable Sharing Program to use federal law to do so.

“Civil asset forfeiture laws turn many fundamental concepts of democracy upside down, creating an assumption of ‘guilty until proven innocent,'” said Major Neill Franklin (Ret.), executive director of Law Enforcement Against Prohibition. “Before today, anyone could have their money or assets taken by police without ever being charged with a crime and with little chance of ever getting it back. Today is a major victory for anyone who cares about due process and the rule of law.”

Drug charges are among the most commonly used to justify such seizures. They are particularly appealing because a court may permit the seizure of cash related to drug sales as well as any property associated with the alleged crime. This may include personal property such as boats, cars, airplanes or land owned by the alleged wrongdoer. The department is then free to use these most of these assets as they see fit.

In most cases, property owners are unable to retrieve their property because of onerous appeals procedures and because the burden of proof shifted to owners to prove their innocence rather than the burden being on the state to prove their guilt.Because the amount seized is often less than the cost of contesting the case in court, 5 out of 6 people never challenge the case.

A September 2014 Washington Post report found that since 9/11, nearly 62,000 cash seizures totaling more than $2.5 billion were conducted without search warrants.

The announcement comes one week after Sen. Charles E. Grassley (R-Iowa), chairman of the Senate Judiciary Committee; Rep. James F. Sensenbrenner Jr. (R-Wis.), chairman of the House Judiciary subcommittee on crime, terrorism, homeland security and investigations; Rep. John Conyers Jr. (D-Mich.); and Sen. Mike Lee (R-Utah) sent Holder a letter urging him to rein in asset forfeiture practices.

There are a few exceptions to the new policy, including “illegal firearms, ammunition, explosives and property associated with child pornography, a small fraction of the total. This would eliminate virtually all cash and vehicle seizures made by local and state police from the program.”

LEAP is a nonprofit of criminal justice professionals who know the war on drugs has created a public safety nightmare of increased gang violence, police militarization and the fueling of dangerous underground markets.

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