Attorney General Eric Holder has granted the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) authority, for a one-year trial period, to seize and administratively forfeit property allegedly involved in controlled substance offenses pursuant to United States Code Title 21 › Chapter 13 › Subchapter I › Part E › § 881...
AG Holder’s rulemaking announcement declared that such changes are exempt from the general notice and comment requirements because the department determined that the change does not affect individual rights and obligations.The intent is spelled out in the Federal Register. The Department of Justice says the move allows confiscated cash to become government property in as little as 60 days, and without going to court:
An uncontested administrative forfeiture can be perfected in 60-90 days for minimal cost, including the statutorily required advertisement and notice by registered mail. Conversely, the costs associated with judicial forfeiture can amount to hundreds or thousands of dollars and the judicial process generally can take anywhere from 6 months to years. In the meantime, the government incurs additional costs if the property requires storage or maintenance until a final order of forfeiture can be obtained.Civil forfeiture became a popular tactic in the so-called War on Drugs. Here's some background on civil forfeiture from a 1999 report by a lobbying group called the Drug Policy Foundation. These paragraphs begin on page four:
Civil forfeiture is based on the legal fiction that the property that facilitates or is connected with a crime has itself committed a wrong and can be seized and tried in civil court (e.g., United States v. One1974 Cadillac Eldorado Sedan). Such judicial hearings are referred to as in rem proceedings, meaning “against the thing.”
...At the federal level, a civil forfeiture can be administrative or judicial. Administrative forfeitures are carried out by the investigating agency that seized the property, without judicial involvement. Administrative forfeitures primarily take place under customs law, and include conveyances used to import, export, transport, or store any controlled substance. Owners who wish to challenge a property seizure have 20 days to file a claim contestingan administrative forfeiture, and only 10 days if the forfeiture is initially brought in federal court. The owner must also post a cost bond in the amount of 10 percent of the value of the property seized, not to exceed $5,000 or be less than $250.
If the owner does not prove the innocence of the property and it is found “guilty,” it is then “punished”—forfeited to the government. The owner of the property does not have to be charged or convicted of the crime to which the property was purportedly connected. In fact, one recent study showed that more than 80 percent of person who had their property seized by the federal government were never even charged with a crime.The Drug Policy Foundation is (or was) an organisation advocating for drug legalization. The laws cited in the report may have been modified, perhaps even expanded in favor of the government since the report was released 13 years ago. Regardless of your position on illegal drugs, the organisation's report provides a basic framework to understand the potential abuse and threat posed to property rights and individual liberties when government agencies are equipped with the powers to conduct civil forfeiture.
Update: For additional background, here's an FBI webpage dedicated to explaining that agency's forfeiture powers and guidelines.