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Contrary to what you may have read recently, Attorney General Eric Holder did not put an end to civil forfeiture, a form of legalized theft in which the government takes property allegedly linked to crime without even charging the owner, let alone convicting him. Nor did Holder stop civil forfeiture by the federal government or by the Justice Department. He did not even eliminate the Justice Departments Equitable Sharing Program, which lets police dodge state limits on forfeiture. Instead Holder restricted part of that program: adoption, where a state or local law enforcement agency seizes an asset and then asks the Justice Department to pursue forfeiture under federal law. Holders reform was a step in the right direction, but not nearly as big a step as much of the press coverage implied.

In an order issued last Friday, Holder said adoption from now on will be limited to property that directly relates to public safety concerns, including firearms, ammunition, explosives, and property associated with child pornography. Judging from the DOJs new instructions to agencies seeking adoption, that list is exhaustive, and it notably does not include drug cases, which account for a large share of forfeitures. That is good news, since it means cops cannot seize cash or other property based on vague, unsubstantiated suspicions that it is somehow related to drug activity and then use adoption to keep up to 80 percent of the loot.

Attorney General Eric Holder (Image: USDOJ)

But cops still can do essentially the same thing if the seizure results from an investigation assisted by or coordinated with federal authorities. Thats a big loophole, especially since there are hundreds of federally subsidized drug task forces across the country, composed of local cops who are often deputized as federal agents. As virtually every drug task force I know of has a federalliaisonon call, saysEapen Thampy, executive director ofAmericans for Forfeiture Reform, this means business as usual [for] local law enforcement using civil asset forfeiturethrough the Equitable Sharing Program to enforce the Controlled Substances Act and other federal statutes. In other words, the exception swallows the rule.

Holders order also explicitly exempts seizures pursuant to federal seizure warrants, obtainedfrom federal courts to take custody of assets originally seized under state law. Brenda Grantland, a California attorney who specializes in forfeiture cases, says that means if a federal prosecutor really wants to adopt a state seizure, he can just ask the federal judge to approve a federal seizure warrant.

Provided there is some sort of coordination, federal participation, or post-hoc judicial approval, these forfeitures are not considered adoptions. But they have a similar effect, allowing local agencies to take advantage of federal forfeiture law, which requires less evidence and lets cops keep a bigger share of the loot than many state laws do. In fact, the seizuresthat are not covered by Holders new policy account for the vast majority of the money that state and local agencies get from federal forfeituressomething like 86 percent, judging from the Justice Departments numbers for fiscal years 2008 through 2013. Similarly, a2012 reportfrom the Government Accountability Office noted that adoptions made up about 17 percent of all equitable sharing payments in 2010.

Robert Morris, an attorney who blogs at Hammer of Truth, argues that such numbers, which reflect the dollar value of seizures, understate the impact of Holders reform, since they do not tell us how many cases qualify as adoptions. If adoptions tend to be worth less than the other forfeitures in the Equitable Sharing Program, they may account for a larger percentage of cases than the dollar figures suggest. Morris says cautious excitement is the appropriate response to the new DOJ policy.

There was a lot of excitement after the DOJ announced its new policy but not much caution. The Washington Post, which broke the story, reported that Holder had barred local and state police from using federal law to seize cash, cars and other property without warrants or criminal charges, leaving the impression that equitable sharing had been eliminated rather than pared back. The Post, which recently has done an excellent job of highlighting forfeiture abuses, said the new policy would eliminate virtually all cash and vehicle seizures made by local and state police from the [equitable sharing] program. The Postdid note, deep in the story, that Holder said equitable sharing would continue in cases where local and federal authorities are collaborating. But it said most of the money and property taken under Equitable Sharing since 2008was not seized in collaboration with federal authorities, which is the opposite of what the departments numbers indicate.

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Despite Holder's Forfeiture Reform, Cops Still Have A License To Steal