The (Cannabis) Asset Forfeiture Fight

cannabis asset forfeituresThe current U.S. House of Representatives has made its share of poor decisions regarding drug policy and crime policy, especially when those policies align with the political dreams of Jeff Sessions. Easy example — they continue to stand in the way of legislation that would make us all safer, including legislation that would protect banks that want to serve marijuana businesses. But every now and then, the House doesn’t stand in the way of clearly reasonable policy. Last week, during its ongoing budgeting and spending process, the House approved an amendment to its appropriations bill that would stop the Department of Justice from expanding its civil asset forfeiture program. Amendment 126 would stop Jeff Sessions from rolling back Obama-era asset forfeiture reforms that barred the DOJ from adopting local civil asset forfeiture cases.

Civil asset forfeiture generally is the law that allows law enforcement to take assets used in conjunction with certain crimes. On one hand, it makes a lot of sense. Police are not courting controversy when they charge someone with a crime and take their meth lab. Where asset forfeiture becomes pernicious is when it isn’t used as an after-the-fact penalty in a criminal case. Asset forfeiture actions do not require anyone actually be charged with a crime, and law enforcement can gain significant leverage by seizing real property, cash, and other assets in situations where it isn’t clear that a crime has been committed. The value of a forfeited asset does not automatically go into the general public treasury either — it often goes straight to the police department seizing it, creating financial incentives for law enforcement to expand the reach of asset forfeiture.

In 2015, Attorney General Eric Holder announced a new policy regarding federal asset forfeiture. In short, there are both state laws and federal laws governing civil asset forfeiture. When state laws were too restrictive, state and local law enforcement agencies relied on a federal “Equitable Sharing Program” in which local law enforcement would identify something it wanted to be seized and would then transfer the matter to the Federal DOJ who would adopt it. The DOJ would then have jurisdiction and would move forward with the seizure that local law enforcement either did not have the resources to pursue or could not pursue under its state laws. Then, the DOJ would take its 20% commission and give 80% of the seized property to local law enforcement. Even if state law mandates seized assets go to the general fund, Equitable Sharing allowed the DOJ to make the payments directly to the local departments. The 2015 Holder policy ended that unless there was a clear public safety threat supported by warrants and criminal charges.

In July, Jeff Sessions announced that the Department of Justice would roll back these reforms and reinstate Equitable Sharing, further encouraging local law enforcement to engage in asset forfeitures.

Equitable Sharing poses a real threat to cannabis businesses. In states where marijuana is not yet legal, it continues to incentivize law enforcement to stand on the side of illegality, blurring the lines between public safety advocacy and advocacy for their own pecuniary gain. Even if we only look at states where marijuana is legal, Equitable Sharing is by its nature an incentive structure to get local police departments to play a role in federal law enforcement. As we have described in the past. The DEA does not have enough human resources to directly enforce marijuana laws in any major way. But under an Equitable Sharing policy, a police department in a rural part of a state could conceivably identify a number of local marijuana businesses and use Equitable Sharing to have the federal government conduct the seizures. That may not comport with current federal enforcement policy as described in the Cole Memo, but Jeff Sessions has often shown an eagerness to read the Cole Memo narrowly.

So it was great to hear that Amendment 126 passed in the House of Representatives. It is not law yet. After the House and the Senate pass their own appropriations bills, they go to conference and negotiate a single bill. If Amendment 126 survives conference, it will go back to the House and the Senate before being put in front of President Trump to sign. Even if the President doesn’t like the amendment, he is not going to veto an appropriations bill because of it, so what comes out of conference will almost certainly end up being law. Conference presents especially high stakes this year, as the Senate version also contains a restriction on federal enforcement of medical marijuana laws that have been in place since 2014 that the House blocked. Call your members of Congress and advocate on both of these issues — they’re important.