Didn’t DOJ Fix the Problem?

In 2015, following public outcry about abuses under the equitable sharing program, then-Attorney General Eric Holder placed new limits on DOJ’s use of one type of equitable sharing—adoptions—with Treasury following suit. ¹ Adoptions occur when state or local agencies seize property without the involvement of any federal law enforcement officers and then later request that the federal government “adopt” the property by forfeiting it under federal law. This contrasts with joint operations, where seizures are conducted by state or local agencies that are part of a federal task force or working on a joint investigation. ²

The Holder policy change focused on adoptions out of concern that a lack of federal oversight of seizures hid abuses and that agencies were using adoptions to circumvent stronger state laws. ³ Critics warned, however, that the new policy did not go far enough. Among other problems, the change did not touch joint operations, which have historically made up the bulk of equitable sharing forfeitures. ⁴

In fact, adoptions accounted for just 30% of equitable sharing forfeiture cases and 17% of the total value forfeited under equitable sharing between 2000 and 2015. ⁵

Critics also warned that, absent congressional action, the policy change could be undone by a future administration. ⁶  And that is, in fact, what happened. In 2017, then-Attorney General Jeff Sessions largely rolled back the change, with Treasury again following DOJ’s lead. ⁷ As a nod to the problems the Holder change was meant to remedy, Sessions introduced new “safeguards” intended to protect innocent property owners. However, the new provisions are weak at best and do not provide meaningful protections. ⁸

DOJ data indicate that adoptive forfeitures did decrease drastically in the years following the Holder policy change and that they have been on the rise since the Sessions reversal (see Figure 22). ⁹ However, it is too soon to predict whether the trend will continue. Moreover, the Holder change came at a time when both adoptive and joint forfeitures were already decreasing. As a result, the effects of either policy are difficult to detect. What is clear is that equitable sharing remains a tool very much available to state and local law enforcement.

Figure 22: Number of DOJ Equitable Sharing Forfeitures, Adoptions vs. Joint Operations, 2000–2019

Source: Authors’ calculations based on DOJ’s Consolidated Asset Tracking System, updated April 3, 2020, https://www.justice.gov/afp/freedom-information-act