April 23, 2015 4:28PM

Loretta Lynch Confirmed as Attorney General

After one of the longest confirmation processes in the history of the Attorney General's office, Loretta Lynch was confirmed by the Senate today as Eric Holder's successor.

From a criminal justice perspective, whether Lynch will embrace or abandon Holder's position on state-level drug legalization and his announced commitment to reforming civil asset forfeiture are two questions that spring immediately to mind.

Loretta Lynch zealously defended civil asset forfeiture during her confirmation hearings, and was a devoted practitioner of it as a U.S. Attorney in New York.  One of her seizure cases, that of the Hirsch brothers [$], garnered widespread attention and condemnation, and helped spur the nationwide calls for reform to which Eric Holder responded.

As previously discussed here:

In May of 2012 the Hirsch brothers, joint owners of Bi-County Distributors in Long Island, had their entire bank account drained by the Internal Revenue Service working in conjunction with Lynch’s office. Many of Bi-County’s customers paid in cash, and when the brothers made several deposits under $10,000, federal agents accused them of “structuring” their deposits in order to avoid the reporting requirements of the Bank Secrecy Act. Without so much as a criminal charge, the federal government emptied the account, totaling $446,651.11.

For more than two years, and in defiance of the 60-day deadline for the initiation of proceedings included in the Civil Asset Forfeiture Reform Act of 2000, Lynch’s office simply sat on the money while the Hirsch brothers survived off the goodwill their business had engendered with its vendors over the decades.

That case, which was handled by the Institute for Justice, finally ended [...] when Lynch’s office quietly returned the money, having found no evidence of any wrongdoing. The Hirsch brothers and their business survived, but just how many law-abiding small businesses can afford to give the government a 33-month, interest-free loan of nearly half a million dollars?

 Indeed, Holder's recent policy memo on structuring offenses explicitly forbids precisely the behavior exhibited by Lynch's office during that case.  

There have been positive reforms to civil asset forfeiture at the state and federal levels over the last several months. Lynch's tenure comes at a pivotal time in the national debate over forfeiture laws. Whether Lynch embraces those reforms or attempts to stem the tide in favor of more expansive government power remains to be seen.

Meanwhile, perhaps Holder's most important decision as Attorney General was his order to "de-prioritize" marijuana prohibition enforcement in states that have voted to legalize recreational or medical marijuana.  While Holder's commitment to that policy has occasionally been questioned, the potential impact of the decision by the federal government to allow states to create their own drug policies cannot be overstated.

Loretta Lynch is a staunch opponent of marijuana legalization and spoke against President Obama's position on marijuana.  But when pressed, Lynch gave answers during her confirmation hearings that implied that she would not upset current policy (even if some might bicker with her description of current policy): 

“I can tell you that not only do I not support the legalization of marijuana, it is not the position of the Department of Justice currently to support the legalization. Nor would it be the position should I become confirmed as attorney general.” 

So, what will her policy on state-level drug legalization look like? Technically speaking, those participating in state-legal drug markets in states like Colorado and Washington are in plain violation of federal law.  Their ability to operate thus far has been solely due to the grace of the Obama Administration.  Will Lynch's confirmation threaten that executive grace?  Anti-prohibition advocates are confident that Lynch will maintain Holder's priorities, but Lynch has thus far refused to tip her hand from a policy perspective.

America has a new Attorney General, but precisely what that means for federal criminal justice reform remains an open question.