In this post, we consider the Department of Justice’s (DOJ) Office of the Inspector General report (OIG Report), released on March 29, 2017, evaluating the DOJ’s oversight of its cash seizure and forfeiture operations. This post is a companion to yesterday’s piece addressing the Treasury Inspector General for Tax Administration (TIGTA)’s recent report on IRS civil forfeiture for structuring violations. Read in tandem, the OIG and TIGTA Reports suggest that many forfeitures occur without conclusive information about the details of the potential underlying crime, or even whether an underlying crime was involved at all. The OIG Report concludes that more robust investigations and data collection on forfeitures would both allow DOJ monitor the effectiveness of its forfeiture efforts and increase public confidence in the forfeiture process. Improved investigations and data collection also may lead to greater enforcement opportunities by tying forfeitures to ongoing investigations or initiating new enforcement actions based on findings in forfeiture investigations.
This OIG Report is the latest in a series of recent OIG evaluations of DOJ forfeiture initiatives which respond, at least in part, to civil liberties concerns raised by forfeiture reform advocates. (See OIG’s January 2015 report on so-called “cold” consent encounters at mass transit facilities, and its September 2012 investigation of forfeiture enforcement by a local Florida police department). Both of those investigations concluded that more data analysis was needed to ensure that forfeiture operations were serving legitimate law enforcement interests.
The most recent report continues with the same theme, finding that the DOJ and its investigative components do not collect or use sufficient data to properly oversee seizure operations, or to determine whether those operations relate to or benefit criminal investigations. The OIG report focuses on three main topics: (1) the lack of data assessing the relationship between seizure and forfeiture activities and investigative outcomes; (2) in the absence of such data, the OIG itself sampled 100 DEA cash seizures that had characteristics OIG believed made them “particularly susceptible to civil liberties concerns”; and (3) the DOJ’s relationship to state and local law enforcement, through both training and equitable sharing arrangements. This post addresses topics (1) and (2). As we have previously written, equitable sharing arrangements raise their own issues of balancing individual property rights against law enforcement objectives, which are conceptually distinct from the issues addressed here.
Lack of Data Assessing the Relationship Between Seizure and Forfeiture Activities and Investigative Outcomes
The Report finds gaps in DOJ and its investigative components’ (ATF, DEA, and FBI) data collection and analysis. These gaps leave the Department ill-equipped to determine the effectiveness of its forfeiture programs in advancing investigations, and the potential for those programs to result in civil rights abuses. Specifically, the Report concludes that the investigative components only can determine how often seizure and forfeiture advance or relate to criminal investigations by performing case-by-case reviews. Furthermore, it finds that although the Department can aggregate data to identify risk factors and the outcomes of seizure activity, the investigative components “do not actively use this type of aggregate data to evaluate and oversee seizure operations.”
Instead, the primary use for the Department-wide data collection system (the Consolidated Asset Tracking System, or CATS), seems to be financially tracking forfeited assets. Using CATS data, DOJ prepares annual reports which a member of the DOJ’s Asset Forfeiture Management Section described as the main source of publicly available data about forfeiture. However, this data focuses on “the financial benefit to federal, state, and local government, rather than providing information as to whether seizure and forfeiture advance investigative efforts.” And, the DOJ’s Money Laundering and Asset Recovery Section acknowledged that “the Department lacks an automated way to link forfeited assets to particular criminal investigations and prosecutions.”
The Report concludes that the Department should collect and analyze outcome and risk data, and expresses that this finding is similar to its earlier finding in its 2015 evaluation of DEA cold consent cases. In short, because of the data systems currently in place, the OIG’s analysis could not conclusively determine the extent to which seizure and forfeiture programs advance law enforcement efforts.
OIG’s Analysis of 100 DEA Cash Seizures
In the absence of aggregate data, the OIG selected 100 DEA cash seizures it deemed to be particularly susceptible to civil liberties concerns, because they occurred without a warrant and without the presence of narcotics. The majority of the sampled seizures occurred in interdiction settings at transportation facilities such as airports, parcel distribution centers, train stations, and bus terminals. In most of these cases, law enforcement did not have previous knowledge of any suspected drug trafficking activity. In such situations, law enforcement officials rely heavily on their own professional discretion to decide whether to initiate an encounter that may lead to a seizure and forfeiture.
The DEA Agents Manual provides that any seizure should be “an action that takes place incident to a major drug investigation.” But the OIG investigation revealed that the DEA could verify that a seizure had either “(1) advanced or been related to ongoing investigations, (2) resulted in the initiation of new investigations, (3) led to arrests, or (4) led to prosecutions” in only 44 of the 100 sampled cases. And, all of the cases in which the DEA could provide no link to a criminal investigation involved interdiction settings. This was true even for large seizures: 7 of the 19 seizures in the sample that were over $100,000 did not advance or relate to an identified criminal investigation.
While this data does not conclusively establish that forfeiture efforts are not advancing law enforcement efforts, or are resulting in civil rights abuses, it raises questions as to whether the DEA is using its forfeiture practices to their full potential. The Report highlighted one particular seizure from its sample that illustrates this point.
While this data does not conclusively establish that forfeiture efforts are not advancing law enforcement efforts, or are resulting in civil rights abuses, it raises questions as to whether the DEA is using its forfeiture practices to their full potential. The Report highlighted one particular seizure from its sample that illustrates this point. In that case, TSA agents discovered over $70,000 concealed in a compartment inside a piece of checked luggage. A drug dog alerted to the presence of a controlled substance, and law enforcement seized the cash. However, the agents had “no immediate way to contact the traveler who had checked the bag” since the traveler had already boarded the plane and the ticket was not purchased directly through the airline. No follow-up investigation was done—no effort was made to alert law enforcement at the destination airport to speak with the bag’s claimant; instead, the DEA simply placed a receipt for the currency and DEA contact information in the bag. The DEA sent a seizure notice to the traveler’s address, but received no response and again conducted no further investigation. No petitions or claims were filed on the seizure, and the full amount of seized cash was administratively forfeited.
Certainly, the facts of this seizure suggest that the forfeited money was connected to the drug trade. And civil liberties concerns seem unlikely, since the traveler was given information sufficient to allow a challenge to the forfeiture, but did not file a claim despite the large sum of money at stake. However, the operation succeeded only in removing potential drug money from the drug trade and adding to law enforcement’s forfeiture accounts. No prosecution seems to have resulted, nor any investigation that could have led to greater information gathering about additional members of the suspected drug trafficking organization. This would seem to represent a lost opportunity for more impactful enforcement, and, as the Report notes, is inconsistent with the “intent of DEA policy governing asset seizure and forfeiture,” that is, that seizure of assets should be viewed as “an action that takes place incident to a major drug investigation.”
Thus, as with the TIGTA investigation, the OIG found DOJ and its components lacked sufficient data to assess whether forfeiture operations are effectively targeting criminal activity. And, OIG’s own investigation suggests that more thorough investigations by the DOJ and its components related to seizures and forfeitures may in fact lead to the type of corroborating information that would put some forfeiture critics at ease.
DOJ Criminal Division Response
The Criminal Division responded to a draft of the Report. It asserted that the report’s title is misleading, since it purports to review “The Department’s” oversight of cash seizure and forfeiture activities, but then focuses on a narrow set of DEA seizures. The Criminal Division also took issue with the OIG’s conclusion that only 44 of its 100-seizure sample were connected to law enforcement efforts. By its own evaluation, the Criminal Division concluded instead that “81 of the 100 assets sampled by OIG were likely tied to a criminal investigation or prosecution, while only 19 of the assets could potentially be seizures that did not advance an ongoing criminal investigation—although even those seizures may have yielded intelligence that advanced other criminal investigations.” Furthermore, the Criminal Division disputed the OIG’s characterization of its sample cases as susceptible to civil liberties concerns. In particular, the Criminal Division noted that 20 of the 100 assets were valued over $100,000, and that such large seizures are likely to involve significant criminal activity and thus, are unlikely to involve innocent owners.
Despite these critiques, the Criminal Division acknowledged the data collection issues the Report identifies, and stated, “the Department is undertaking a new initiative to develop a public-facing data system that will help link assets and case-related information in order to address the shortfalls of CATS.” Such a system may indeed lead to more transparency in forfeiture, and contribute to public confidence that the system is appropriately accomplishing law enforcement objectives, not just financial ones.
