Change likely to have little local effect
Attorney General Jeff Sessions drew bipartisan vitriol last month when he reinstated a controversial civil asset forfeiture policy that allows local police to rake in thousands by circumventing state laws and courts. However, since the state reformed the practice with legislation in 2015, it’s unlikely Ohio law-enforcement agencies will be lining their departments’ pockets.
The U.S. Department of Justice went back to the Equitable Sharing Program, which allows federal attorneys to take over civil forfeiture cases in which local law-enforcement agencies have seized assets even when the owner, such as a drug suspect, isn’t convicted of or even charged with a crime. Federal prosecutors then kick back a percentage of the proceeds to the local agency.
Data from the Columbus Division of Police shows a
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precipitous drop in revenue, to the tune of hundreds of thousands of dollars, after the state reforms went into effect in 2016. Sessions’ policy isn’t expected to help recoup that lost money.
“It may have some impact, but I don’t think it’s as extensive as you might think,” said John Murphy, executive director of the Ohio Prosecuting Attorneys Association.
Murphy’s organization opposed House Bill 347, the 2015 measure that reformed seizures and forfeitures in the state. Among chief changes were restrictions on the use of the federal adoption process, which Sessions reopened with his policy directive.
Under the bill, Ohio law enforcement agencies can only transfer forfeiture cases to federal authorities if they utilize federal criminal forfeiture procedures, which is not the preferred method among prosecutors, according to Lee McGrath, legislative counsel with the Institute for Justice. That’s because the bill also raised the burden of proof on prosecutors in civil and criminal forfeiture cases to provide clear and convincing evidence of the assets’ connection to a crime. McGrath testified in support of House Bill 347.
He said the dynamic between criminal and civil forfeiture is a nuanced but important one. In criminal forfeiture cases, defendants are assigned a public defender to help litigate their assets. In a civil case, the cost of a lawyer falls completely on a defendant. The burden of proof is also lessened in civil cases, McGrath said.
“Ohio’s law subjects residents to the loss of property because the cost of litigating often exceeds the value of the property seized,” McGrath said.
Data from the Columbus Division of Police show the bill’s effectiveness in reforming seizure and forfeiture policies. In 2012, the city received more than $440,000 in forfeiture disbursements from 55 seizures, most of which were done in coordination with federal agencies.
In 2013, the city received more than $180,000 from seizures. In 2014, the total reached nearly $945,000. The following year, when the House bill was approved, Columbus police pulled in more than $350,000, their share of more than $2.6 million in assets seized with the help of federal agencies.
But when the state law took effect in 2016, Columbus police took about $95,000 from their seizure activities.
These totals contain High Intensity Drug Trafficking Area program payouts, a federal program created to assist state and local authorities police areas known for drug trafficking.
The financial haul for the Columbus Division of Police highlights an issue many take with asset seizures and forfeitures. Many law-enforcement agencies, especially smaller ones, supplement their budgets with that money. This profit motive was found by a researcher to skew the program from its intended use, which is to interrupt large-scale organized crime operations.
Nick Schieber, a civil process officer with the Burlington County sheriff’s department in New Jersey who studied the process for his masters degree at LaSalle University, said his research did not find a correlation between drug manufacturing, trafficking and distribution arrest rates and the growing federal forfeiture fund.
“My argument is that it’s not being used for what it’s intended for,” Schieber said.
His data, accumulated from the Bureau of Justice Statistics, support his findings. Manufacturing and distribution arrest rates remained stagnant over the years while drug possession arrest rates skyrocketed to about 1.3 million in 2012. Meanwhile, the departments of Justice and Treasury forfeiture funds reached more than $3 trillion that year.
The profit incentive for local law enforcement, coupled with the expensive litigation costs of civil forfeitures, creates a sticky trap for civilians who have their assets seized, often without ever being charged with a crime.
“It’s definitely a labyrinth that people have to maneuver whenever their assets are seized,” Schieber said. “And it’s definitely favored for those who are doing the seizure.”
Charles Rittgers has worked for years defending victims of asset seizure at his Cincinnati-area law firm, Rittgers & Rittgers. In his experience, he’s found that the majority of forfeiture cases go uncontested because of the cost of litigation.
“Poor people suffer the most from asset forfeiture,” Rittgers said. “They have less power and few resources to combat an illegal taking and more times than not the taking is substantially less than the attorney fees that would be associated with recovering the property and rectifying the wrong.”