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11/03/94
15:07
202 514 9368
ODAG
002
U.S. Department of Justice
Office of the Deputy Attorney General
The Deputy Attorney General
Washington, D.C. 20530
November 3, 1994
Robert Wasserman
Chief of Staff
Office of National Drug Control Policy
Washington, D.C. 20500
Dear Mr. Wasserman:
Thank you for your letter of October 31, 1994, concerning
the Justice Department's plan to reorganize its asset forfeiture
responsibilities by combining the Executive Office for Asset
Forfeiture with the Criminal Division's Asset Forfeiture Office.
I want to emphasize that this reorganization is purely a
matter of internal administration. It implicates no change in
our policies toward asset forfeiture, in our relationships with
other federal agencies, or in our critically important
partnership with state and local law enforcement. It will have
no effect on the amount of money available to the Assets
Forfeiture Fund or to the Office of National Drug Control Policy
(ONDCP). Asset forfeiture is, and will remain, a vital tool in
combatting criminal activity of all sorts -- including, but
certainly not limited to, the scourge of narcotics trafficking.
The reorganization is part of the Department's larger
response to the National Performance Review, fulfilling the Vice
President's request that we review our existing management
structure, strive for greater management efficiency and, in
particular, eliminate duplicative structures. As part of that
process, I have moved three other operational offices out of the
Office of the Deputy, and into the operational divisions where
they belong. The Executive Office for Asset Forfeiture is the
only such office remaining in the Office of the Deputy, and as a
consequence the Department's asset forfeiture responsibilities
currently are being carried out from two separate locations -- my
office and the Criminal Division. We have concluded that
combining those functions into one office will help ensure
accountability and efficiency.
The following are answers to the specific questions you
posed in your letter. I understand that many of these points
were discussed with your staff during the briefing they were
given by Department of Justice officials on October 26, 1994. I
am happy to provide further amplification here.
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1.
What are the advantages of the proposed changes for (1)
the Federal government (Justice, Treasury, ONDCP,
etc.,) and (2) State and local governments?
(1) The principal advantage of the change from the
standpoint of the Federal government is that the reorganization
will enable the Department to achieve efficiencies through the
elimination of duplication, and the centralization of asset
forfeiture policy and oversight responsibilities in the Criminal
Division's Asset Forfeiture Section. There shouldabe no other
effects on other federal agencies, including Treasury and ONDCP.
The change also will permit the streamlining of the Office
of the Deputy Attorney General, and thereby facilitate the
execution of its important staff and leadership functions. To
ensure appropriate supervision and accountability, operational
functions should not be placed within staff offices, except under
extraordinary circumstances. Over the past five years, the asset
forfeiture program has made great strides under the leadership of
the Executive Office. It no longer is necessary or wise for such
operational functions to continue to reside in the Office of the
Deputy Attorney General.
(2) With respect to State and local governments, the
reorganization will eliminate the confusion which has sometimes
arisen because the Department has had two offices with broad
asset forfeiture responsibilities: an Executive Office for Asset
Forfeiture located in the Office of the Deputy Attorney General,
and an Asset Forfeiture Office in the Criminal Division which
also has broad asset forfeiture responsibilities. Creating a
single point of contact within the Department of Justice for all
State and local asset forfeiture issues will make it easier for
us to be responsive to all the concerns of State and local
officials. (Those administrative matters for which
responsibility will be located within the Justice Management
Division (JMD) do not affect the interests of State and local
agencies. Moreover, those administrative responsibilities will
be handled by basically the same personnel as under the current
organization; these are primarily employees of JMD who originally
were detailed to EOAF and will now return to JMD).
2.
Has the Department received any complaints regarding
how the program is currently operated? If so, what has
been the nature of most complaints?
The reorganization is not premised upon the need to correct
any particular deficiencies in the current operation of the asset
forfeiture program, other than to provide better oversight and
consolidate duplicative functions.
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3.
What percentage of forfeiture cases handles by DOJ are
actually reviewed by the Deputy Attorney General's
Office and what is the length of time that this review
process takes?
Although a relatively small number of forfeiture cases are
reviewed by my Office, they include all equitable sharing
decisions in cases involving $1 million or more, settlement of
forfeiture cases releasing more than $2 million or more in
assets, and multi-district cases. Although detailed statistics
are not available, these particularly large cases probably
represent in excess of 10% of the value of all sharing decisions.
Review by my Office, including time for inter-office transmittal
and logging of correspondence by our central Executive
Secretariat system, consumes approximately two weeks per action.
This time can be reduced significantly through the proposed
reorganization. Substantial time is also spent on policy
matters.
4.
What will be the method for dispute resolution under
the new proposal?
Dispute resolution under the new organizational structure
will be the same for asset forfeiture as for all other
operational areas. The components will resolve matters where
possible, and my Office will move quickly to address disputes
that cannot be resolved at a lower level. I will continue to be
involved in the establishment of policy in this area.
5.
Currently, personnel costs associated with the EOAF are
funded through direct appropriations. The Department
indicates that when EOAF's administrative function is
reassigned to the JMD, those 7 FTES currently funded by
appropriation will be funded through the Working
Capital Fund which will be reimbursed from the Asset
Forfeiture Fund. When ONDCP staff inquired about what
the funding currently used for those FTEs will now be
used for, we were informed that five of those positions
were already cut during the budget process. Please
explain whether the out in FTEs was specifically
directed toward EOAF, or did it relate to general cuts
in the FTE level.
The cut in FTEs discussed at the staff-level meeting related
to general cuts in FTEs. The FTE level used to manage the asset
forfeiture program will not be cut.
6.
Please provide a detailed explanation of the categories
of cost for Asset Forfeiture Fund program operational
11/03/94
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expenses, particularly, those treated as mandatory and
discretionary expenses. How will you determine the
justification of the various amounts deposited into
those accounts?
These issues are independent of the question of where the
asset forfeiture function is placed in the Department's
organizational chart. All Assets Forfeiture Fund expenditures
other than "awards, purchase of evidence, and equipping of
conveyances" are regarded as "mandatory" expenses and have no
statutory dollar caps. Subsection 524(c) of title 28, United
States Code, defines what expenses are eligible for payment from
the Department of Justice Assets Forfeiture Fund and defines
which of those expenses are subject to annual appropriations.
Over 80% of payments made annually are considered mandatory
costs. The largest single category of "mandatory expenses" is
equitable sharing with State and local law enforcement agencies,
which has exceeded $200 million per year for the past several
years. Historically, the Department has conducted an internal
budget process in which participating agencies justified unmet
funding requirements. To the extent funds are available, we
attempt to fund the most critical needs. This process will not
be changed by the reorganization.
7.
What is the difference in overhead expenses (money
supporting administrative and coordinating costs, not
available for distribution to other entities) between
the current program and the reorganized program?
There should be no increase in overhead from the
reorganization. The only difference between monies available for
distribution from the Assets Forfeiture Fund under the current
and proposed program is the cost of the salaries and benefits of
the Asset Forfeiture Management Staff in the Justice Management
Division. This previously was funded from appropriated monies
and -- without regard to where the function is located -- will
now be paid from the Working Capital Fund and reimbursed from the
Assets Forfeiture Fund. This is a permissible expense of the
Forfeiture Fund, and is expected to amount to approximately
$850,000, which is less than 1/5th of 1% of total Assets
Forfeiture Fund receipts. This issue is independent of the
question of where the asset forfeiture function is placed in the
Department's organizational chart.
8.
How will DOJ convince Fund constituencies of the
advantages of the proposed changes? How will
interested members of Congress be convinced these
changes are not a re-visit of the Byrne proposals?
11/03/94
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I have personally met with representatives of all national
law enforcement organizations to explain the rationale for, and
advantages of this reorganization. Those meetings have been
preceded, and followed, by additional meetings at the staff level
with members of the federal, state and local asset forfeiture
constituencies. As discussed in this letter, we have explained
that the reorganization is purely a matter of internal
administration, that it is expected to yield greater management
efficiency and accountability, and that the Department is
committed to ensuring that it will result in no change in the
nature or quality of the partnership between the Department and
its constituency groups. I have further committed to re-visit
the reorganization decision expeditiously if any diminution of
effectiveness in Department performance is detected. Finally, we
have established an on-going working group with representatives
of state and local law enforcement to provide a forum for
ensuring that the program continues to work effectively.
I hope this letter is responsive to your questions. It is
important for the Department, and for the law enforcement
community, to move forward on this reorganization as quickly as
possible. Please do not hesitate to contact my staff if you have
any additional questions.
Sincerely yours,
Jani S. Joshich
Jamie S. Gorelick
Deputy Attorney General
MEMORANDUM TO DIRECTOR LEE BROWN
FROM:
ROBERT WASSERMAN
SUBJECT: Department of Justice's Reorganization of Executive
Office of Asset Forfeiture
BACKGROUND
The Executive Office of Asset Forfeiture (EOAF) was established
in late 1989 to oversee all aspects of the Justice Department's.
asset forfeiture program. Because of the high profile of the
program, the EOAF was specifically placed in the Office of the
Deputy Attorney General so that coordination of the program could
be facilitated at the highest levels of the Department.
Prior to its establishment, the various Justice components
involved in the asset forfeiture program essentially operated
independently -- only loosely coordinated by a single individual
in the Deputy Attorney General's office.
The backdrop against which the EOAF was created included the
forfeiture program being designated as a "material weakness" in
the 1989 Annual Report to the President and Congress pursuant to
the Federal Managers' Financial Integrity Act. OMB had
designated the Federal Asset Forfeiture Program as one of its
"high risk" programs requiring OMB oversight. The GAO designated
the management of seized assets, as one of 14 program areas in
the Executive Branch warranting special audit and review.
EOAF's responsibilities include policy, management, oversight and
strategic planning for all aspects of the domestic and
international forfeiture programs.
The creation of EOAE was directly in response to OMB and GAO
concerns that central coordination and management was required to
improve Asset Forfeiture Fund program operations. Since its
creation EOAF has managed the Department's program and by all
accounts has improved the administrative procedures and
accountability of the program. The EOAF has also worked toward
developing and implementing a Consolidated Asset Tracking System
and has acted as a central point of contact for Members of
Congress, and other Federal, State and local agencies regarding
the asset forfeiture program. Many State and local law
enforcement and prosecutorial officials believe that the
timeliness of the equitable sharing process has improved due to
policy and program changes implemented by EOAF.
Since ,inception the EOAF has:
-
reduced the backlog of forfeiture cases;
-
reduced the average processing time of administrative
forfeitures;
-
developed and instituted multi-component training
programs -- including one specifically designed for
State and local law enforcement;
I
conducted and maintained a physical inventory of all
seized assets in the custody of the U.S. Marshal's
Service;
-
completed a memorandum of understanding for asset
consolidation between the U.S. Marshal's Service and
the U.S. Customs Service;
-
created a new accounting structure to improve the
control of funds;
-
streamlined procedures to expedite domestic and
international forfeiture and asset sharing;
-
created a policy encouraging the Federal adoption of
seizures made by State and local law enforcement
agencies to assist them in their anti-crime efforts and
encourage cooperation;
-
developed quality assurance standards to ensure that
the program is carried out in an ethical and prudent
manner.
DEPARTMENT OF JUSTICE PROPOSED REORGANIZATION
On October 4, 1994, DOJ notified OMB that Justice intended to
abolish the EOAF and reassign the administrative, policy and
oversight functions to other components within the Department.
Under this proposal, policy and oversight functions will be
reassigned into the Asset Forfeiture Office of the Criminal
Division. The Administrative function, including management of
the Asset Forfeiture Fund, will be reassigned into the Justice
Management Division.
DEPARTMENT OF JUSTICE POSITION
The Department of Justice believes that reassigning the policy
and oversight function of the EOAF into the Criminal Division
(Asset Forfeiture Office) and the administrative function into
the Justice Management Division will improve the efficiency of
the program. Justice has stated that, " [t]he previous
bifurcation of the forfeiture program in the Department between
the Criminal Division and the EOAF tended to create unnecessary
confusion and wasteful duplication of effort. A single point of
contact will serve law enforcement's aims as well as the
Administration's demands for greater efficiency through
streamlining." Additionally, the Department further states that
by consolidating most of EOAF's functions within the Criminal
Division and its Asset Forfeiture Office, the Department
recognizes the close connection between the development of
policies and their implementation in actual cases (October 25,
1994 letter to Director Brown from Jo Ann Harris, Assistant
Attorney General)
The Department states that the primary reason for the
reorganization is to minimize confusion and duplication
of effort. Additionally, it is their position that by
abolishing EOAF, forfeitures would be shared more
expeditiously with State and local agencies, because a
review step in the forfeiture process would be
eliminated.
The Department believes that separating administrative
from the policy and oversight functions, the
appropriate responsibilities will be placed into the
appropriate Justice components (i.e. money management
into JMD).
Justice has created an advisory group to address issues
related to forfeiture. If this reorganization has a
negative impact on the efficiency of the program, the
Deputy Attorney General has promised to change the
program again.
ISSUES FOR ONDCP CONSIDERATION
By law (21 USC 1503 (b) the Director of ONDCP must certify that
proposed drug program changes are consistent with the National
Drug Control Strategy. This reorganization could have
significant impact on DOJ' international and domestic asset
forfeiture program. Based on the information provided by the
Department. there is no indication that this proposed
reorganization will improve either the management or operation of
the asset forfeiture program. DEA and other Federal agencies
have very grave concerns over. this reorganization although
they may not voice this opinion. The State and local law
enforcement groups: that have contacted us have expressed concern
over this reorganization. These organizations have also written
letters to the Attorney General expressing their concern.
The asset forfeiture program is a critical aspect of this
Nation' St domestic. and international drug program. The equitable
sharing component of the program encourages cooperative efforts
between Federal, State, and local law enforcement a priority
of the National Drug Control Strategy. Over the last ten years,
approx. $2 billion has been shared with State and local agencies.
EOAF's Location in Deputy Attorney General's Office Facilitates
Coordination
In a briefing to State and local law enforcement organizations,
the Deputy Attorney General stated EOAF was being abolished, in
part, because having it as a part of her office distracted her
from coordinating the activities of all Justice components. We
fail to understand her reasoning. One of the primary functions
of EOAF is to coordinate the activities of the eleven Justice and
non-Justice components involved in the asset forfeiture program.
This would suggest that EOAF would assist the Deputy in carrying
out her functions not detract from it.
State and local entities have expressed the belief that EOAF was
able to make improvements in the asset forfeiture program because
it was located in the office of the Deputy Attorney General.
Arguably, placing EOAF at this high level, gave it the necessary
authority to facilitate the coordination of the administrative,
law enforcement and prosecutorial components which participated
in the program.
During the same briefing the Deputy Attorney General stated that
the elimination of the EOAF was (consistent with the Department's
plan to move away from "executive offices" and centralization of
program management. She indicated that Justice intends to place
program management into the individual components. This
statement is contradicted by the Department's recent action
creating the Executive Office of National Security as part of the
Office of the Deputy Attorney General. This office will
coordinate the various components of the Department involved in
national security matters.
Reorganization Will Have No Impact on Case Review Time
The Department argues that this reorganization will improve
efficiency of the program and will improve the speed in which
forfeitures are shared with State and local agencies. They
argue, that abolishing EOAF, will create a single point of
operational contact and will eliminate a unnecessary level of
case review.
This position seems flawed. First, it is unclear how reassigning
the responsibilities of single, high-level policy,
administrative, and oversight office into two separate
subordinate components constitutes the creation of a "single
operational point of contact.' Secondly, current Department
policy precludes this reorganization from having any impact on
the review process that Justice is allegedly trying to change.
The Guide to Equitable Sharing, requires forfeiture cases to be
reviewed as fbllows: administrative forfeiture cases involving
less that $1 million, are reviewed by the head of the Federal
investigative agency; judicial forfeiture cases involving less
than $1 million are reviewed by the appropriate United States
Attorney; cases involving $1 million or more and multi-district
cases are reviewed by the Office of Deputy Attorney General.
Thus, the Deputy Attorney General/EOAF reviews only a small
number of cases: Furthermore, these guidelines will still require
the Deputy Attorney General to review the same number of cases
currently reviewed by the EOAF. This would suggest that
abolishing EOAF will have no impact on the time it takes for
Justice to review forfeiture cases.
EQAF's Role as Neutral Arbiter
Another function of the EOAF is to act as an impartial decision
authority for policy disputes which arise between the various
Federal, State and local law enforcement and prosecutorial
components which are involved in the asset forfeiture program.
In the case of a disagreement between an entity and the criminal
division on an issue involving a specific forfeiture issue, the
EOAF can also act as a neutral arbiter of the dispute. Abolishing
the EOAF will put that role into the Criminal Division, which in
the past has been a party in some of these disputes. Inevitably,
the Criminal Division, may be asked to resolve a dispute in which
they have a vested interest.
Federal, State and Local Law Enforcement Oppose Proposal
Federal, State, and local law enforcement organizations almost
universally oppose this reorganization and believe it will negate
the improvements to the program realized over the last several
years. This proposal is not simply an internal management
decision. If in fact the program becomes less efficient (as many
believe it will), it will adversely impact the Nation's anti-drug
efforts. Presently, the asset forfeiture program is a mechanism
which greatly encourages cooperation between Federal, State, and
local law enforcement a priority of the National Drug Control
Strategy. If the program becomes less efficient, cooperation
will decrease. Therefore, since reorganization may work to
reduce this level of cooperation, the proposal may be
inconsistent with the National Drug Strategy.
CONCLUSION
Several recent proposals (DEA/FBI merger, elimination of the
Byrne Grant) have caused State and local law enforcement
organizations to become more organized and vocal in speaking out
about Administration actions. In this environment, programmatic
changes should be justified by a showing of benefit to the
federal government' customers or by objective data supporting
the change. At present, the Department's proposal meets neither
of these standards. The proposed reorganization will likely
return the program to its previous structure when it was
identified as a "material weakness" and "high risk" program by
both OMB and GAO.
Based on comments made by the Department both publicly and in our
briefing, this reorganization seems to have originated because
the Deputy Attorney General does not want to have the program in
her office. Basically, Justice is proposing to abolish an office
which has a proven record of effectively -- and with increasing
efficiency managing a critical anti-drug program. IACP, FOP,
PERF, The National Troopers Coalition and other law enforcement
organizations have expressed opposition to the Justice proposal.