In a shocking report last week, The Intercept—an investigative reporting outlet—released portions of an internal government manual detailing how and why federal agents should seize cash and property using powerful asset forfeiture laws.
From what we’ve seen of the manual, called the “Asset Forfeiture Handbook” and used by Immigration and Customs Enforcement’s Homeland Security Investigations arm, the short answer to that question seems to be: Federal agents should be seizing property to make money.
Civil asset forfeiture laws allow law enforcement agencies to seize property they allege was involved in a crime, often without a warrant and without any criminal charges being filed.
Once the property is seized, the property owner must prove, in essence, his own innocence—a complete reversal of the presumption of innocence found in the criminal law.
This is both difficult and expensive since, among civil forfeiture’s many due process deficiencies is a lack of guaranteed counsel. Many innocent people are forced to abandon their money or property for the simple reason that hiring an attorney costs more than the value of what was taken, and the odds of prevailing are, at any rate, low.
Agencies, meanwhile, keep the proceeds. These funds augment their budgets, and may be spent without specific legislative approval or oversight. In other words, government agencies can seize their way to bigger budgets.
The majority of these forfeitures never make it to the courthouse. They live and die in the bowels of a government agency, which makes rigorous analysis of the procedures these agencies use to govern seizures and forfeitures all the more important.
The Driving Focus: Seizing a Bigger Budget
The Intercept unfortunately opted not to release the full 71-page Homeland Security Investigations handbook (though ICE confirmed it is genuine and currently in effect), but the portions that were released reveal a disturbing focus on the revenue-generating power of forfeiture.
The handbook asserts the essential role played by civil forfeiture proceeds in “helping to fund future law enforcement actions … that [Homeland Security Investigations] would otherwise be unable to fund.”
To that end, the manual instructs agents to focus only on profitable seizures.
“As a general rule, if total liabilities and costs incurred in seizing a real property or business exceed the value of the property, the property should not be seized,” the handbook declares. Agents are advised that pursuing unprofitable seizures is a “waste [of] instigative time and resources.”
In reading these excerpts, it is clear that the ICE manual places an emphasis on making a profit and enhancing agency budgets, and not on the potential evidentiary value of the seized property to make a criminal case.
Indeed, the emphasis appears to be on seizing property regardless of the ability to ultimately make a criminal case.
Fleecing the Innocent
Also of secondary importance, according to the ICE manual, is the guilt of the property owner. The manual states:
[There] may be third-party interest[s] that would prevail in a criminal case, but would not survive in a civil proceeding, making the civil proceeding essential to forfeiture. … Under criminal forfeiture, that property owner would be entitled to the return of the property. Under civil forfeiture, however, the owner would lose his or her interest to the government.
Who are these “third-party interests” ICE refers to?
They are people like Russ Caswell, whose motel was seized because a small number of his guests used or sold drugs on the premises. Caswell worked closely with police, but the government still came after him.
A Drug Enforcement Administration agent admitted during a deposition that the motel’s $2.1 million valuation played a central role in the decision to seize it.
They are also people like Chris and Markela Sourovelis, who nearly lost their Philadelphia home because their son sold a small amount of heroin out of the property. The city’s response was to try to render the entire family homeless.
Such disproportionate penalties leveled against people who did not even commit a crime in the first place is fundamentally unfair and constitutes, in the eyes of many people across the political spectrum, a gross miscarriage of justice.
The ICE forfeiture guide takes a different view. ICE agents are directed to devote considerable time and attention to tying homes and other real property to alleged wrongdoing.
This extends to wiretapping phones because merely discussing criminal activity over a telephone line might be legally sufficient to justify seizing the entire home.
Agents are taught to work with real estate appraisers, to conduct walk-throughs, and meticulously scour financial records. The appraisal process is critical to the decision to seize property, a judgement that is made by specialists assigned to the Asset Identification and Removal Group.
These specialists are judged based on the quantity and quality of the cases they oversee—an incentive structure sure to drive up the use of forfeiture.
Counting the Goods
If the message to agents is “bring home the bacon,” it seems that message was received.
According to a 2014 report from the Government Accountability Office, the Department of Homeland Security generated $3.6 billion in forfeiture revenue from 2003 to 2013. From 2007 on, ICE was “consistently” responsible for roughly half of the entire department’s forfeiture proceeds.
About $1.2 billion of this haul was directed back to federal, state, and local law enforcement agencies through the equitable sharing program.
Here again, ICE outperformed its peers, accounting for “over 90 percent of total [Homeland Security] obligations for equitable sharing payments,” the vast majority of which went to state and local partners.
Equitable sharing has come under substantial scrutiny in recent years for usurping traditional state authority over law enforcement functions. In three years, 24 states have outlawed or limited the use of civil forfeiture.
These hard-won, pro-property rights victories are seriously undermined so long as agencies can simply bypass restrictive state laws by turning to the federal program.
Toss the Handbook
For years, a large, growing, and bipartisan group of reformers and advocates have slammed civil forfeiture’s lax procedural safeguards, noted abuses, and the potential for law enforcement profiteering.
Indeed, the ability of the financial incentive to warp law enforcement priorities has been well documented for some time, leading to bizarre outcomes like officers releasing likely criminals in exchange for their money, or allowing drugs into cities so that drug proceeds could be seized later.
With the release of this manual, it would appear that many of these excesses are not the result of “bad apples,” as forfeiture supporters frequently insist, but are deliberate, by-the-book forfeiture actions.
If that is the case, it’s time to rewrite the book.
Congress is currently debating legislation that would address these issues. The DUE PROCESS Act would introduce new procedural protections to forfeiture law, helping to ensure that innocent people are not victimized by a tortuous, imbalanced system.
The FAIR Act would go further, removing once and for all the forfeiture financial incentive.
If legislators need any further evidence of just how far forfeiture has strayed from its original and narrow purpose, consider this quote, given to The Intercept by former Assistant U.S. Attorney Robert Gifford, who handled ICE forfeiture cases:
I said I’d support it as long as it was not a retired mom and pop running a little flea market table on the weekend. But that was exactly who they were going after.