Because the federal government doesn’t keep data collections on its forfeiture programs for further study, the report instead examined a sample of 100 cases to discern any trends. It also excluded cases where agency officials didn’t find drugs or obtain a warrant to focus on encounters with lessened criminal suspicion. Of those 100 cases, 85 of them took place at transit hubs—airports, bus and train stations, and so on. That’s a large share, but not a surprising one: My colleague Conor Friedersdorf reported in 2015 on how targeting travelers is a common DEA practice.
What’s eye-opening about the Inspector General’s findings is how many of the seizures weren’t connected to any larger policing purpose. The report says the DEA only verified that 44 of the seizures had been tied to ongoing investigations or had led to new investigations, arrests, or prosecutions. In other words, more than half of the total seizures didn’t further any law-enforcement efforts. And for the large subset that took place at transit hubs, where the stops are more likely to be indiscriminate, a whopping two-thirds of seizures didn’t appear to benefit any investigations.
Unsurprisingly, the Inspector General’s office wasn’t thrilled by these findings. “When seizure and administrative forfeitures do not ultimately advance an investigation or prosecution, law enforcement creates the appearance, and risks the reality, that it is more interested in seizing and forfeiting cash than advancing an investigation or prosecution,” the report said sternly.
As a remedy, the report’s conclusion focused on policy and training issues: Inadequate guidance led to this problem, it suggested, and better guidance can fix it. But forfeiture skeptics tend to see deeper issues at work than can be solved by the crafting of intra-agency policies. Thomas, for example, raised concerns about the Supreme Court’s own precedents on the subject, which determine the legal thresholds that must be met before federal and state law-enforcement agencies can seize a person’s cash and assets.
“Partially as a result of this distinct legal regime, civil forfeiture has in recent decades become widespread and highly profitable,” he wrote, citing critical reports by the Institute of Justice, a libertarian nonprofit law firm. “And because the law-enforcement entity responsible for seizing the property often keeps it, these entities have strong incentives to pursue forfeiture.”
Thomas didn’t explicitly state earlier this month that he would vote to limit forfeiture’s scope. But he and other Supreme Court justices occasionally craft their concurrences and dissents as a sort of flare gun to catch lawyers’ attention on an issue. Justice Stephen Breyer, for example, has frequently written dissents in recent years urging his colleagues to revisit the constitutionality of the death penalty. In a concurrence two years ago, Justice Anthony Kennedy all but demanded the legal community bring a case before the Court to address solitary confinement.