Transfers of Forfeited Property to State and Local Law

Enforcement Agencies

S ection 981(e)(2) o f title 18 d o es not prevent a state or local law enforcem ent agency from 

retransferring to other state or local governm ent agencies property that has been transferred 

from the federal government pursuant to that section. However, the A ttorney G eneral has 

authority under section 981(e) to prevent such a further transfer by im posing a contrary term 

o f condition on the initial transfer from the federal government.

Section 881(e) o f title 21 does not prevent a state or local law enforcem ent agency from 

retransferring to oth er state or lo cal governm ent agencies property that has been transferred 

from the federal government pursuant to that section. However, the A ttorney G eneral has 

authority under section 881(e) to forbid a further transfer if he determ ines that to do so 

w ould “serve to encourage further cooperation between the recipient State or local agency 

and Federal law enforcem ent agencies.”

January 23, 1992

M e m o r a n d u m O p i n i o n f o r t h e A c t i n g D e p u t y A t t o r n e y G e n e r a l

This is in response to the request from your office for our advice whether 

federal law prevents a state or local law enforcement agency from transferring to other state or local agencies property that has been transferred from 

the federal government pursuant to 18 U.S.C. § 981(e)(2), where the other 

agency intends to use the property for purposes not directly related to law 

enforcement, and to the subsequent request for our advice whether such 

transfers are prohibited with respect to property that has been transferred 

pursuant to 21 U.S.C. § 881(e)(1)(A).1 We conclude that section 981(e)(2) 

of title 18 does not prevent a state or local law enforcement agency from 

making such a further transfer, but that the Attorney General, pursuant to his 

authority under 18 U.S.C. § 981(e), is authorized to prevent such a further 

transfer by imposing a contrary term of condition on the initial transfer from 

the federal government. We also conclude that section 881(e) of title 21 

does not prevent a state or local law enforcement agency from making such 

a further transfer, but that the Attorney General is authorized to forbid a 

further transfer if he determines that to do so would “serve to encourage 

further cooperation between the recipient State or local agency and Federal 

law enforcement agencies.” 21 U.S.C. § 881(e)(3)(B),

Section 981 was enacted as part o f the Anti-Drug Abuse Act of 1986, 

Pub. L. No. 99-570, § 1366, 100 Stat. 3207, 3207-35. Though the statute 

has been amended several times since enactment, the relevant features governing the transfer of forfeited property to state and local law enforcement

1 We do not address whether any particular state or local agency would have the authority, under local 

law, to transfer property to other state agencies. That would not. of course, be an issue of federal law 

and would likely vary from jurisdiction to jurisdiction.

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agencies have remained unchanged. Section 981(e) authorizes the Attorney 

General “to transfer [property forfeited pursuant to this section] on such 

terms and conditions as he may determine . . . to any State or local law 

enforcement agency which participated directly in any of the acts which led 

to the seizure or forfeiture of the property.” That section further requires the 

Attorney General to ensure that the amount transferred to the state or local 

law enforcement agency “reflect generally the contribution of any such agency 

participating directly in any of the acts which led to the seizure or forfeiture 

of such property.” Finally, the section provides that a decision of the Attorney General to transfer forfeited property to a state or local law enforcement 

agency “shall not be subject to review.”

Nothing in the text of section 981 requires that a state or local agency use 

transferred property for law enforcement purposes or even that the agency 

retain the property rather than transferring it to another agency.2 Section 

981 does provide the Attorney General with the discretionary authority to 

impose terms and conditions on the transfer of forfeited property and, pursuant to this power, the Attorney General may impose either or both of the 

conditions that the state or local agency use the property for law enforcement purposes and that it not transfer the property. The Attorney General 

also may transfer the property with no conditions on its use, thereby allowing the state or local agency to retransfer the property or to make any other 

use of the property.

With respect to property forfeited under the control and enforcement provisions of the drug laws (21 U.S.C. §§ 801-904), 21 U.S.C. § 881(e)(1)(A) 

provides that the Attorney General may:

retain the property for official use or, in the manner provided 

with respect to transfers under section 1616a of title 19, transfer the property to any Federal agency or to any State or local 

law enforcement agency which participated directly in the seizure or forfeiture of the property.

In exercising his transfer authority under section 881(e)(1), the Attorney 

General is required, pursuant to section 881(e)(3), to assure that the property 

transferred to the state or local agency:

(A) has a value that bears a reasonable relationship to the 

degree of direct participation of the State or local agency in the 

law enforcement effort resulting in the forfeiture, . . . ; and

!There is little legislative history concerning the Attorney General’s power to transfer forfeited property to state or local law enforcement agencies. The relevant Senate and House reports mention the 

power but offer no explanation or elaboration. See S. Rep. No. 433, 99th Cong., 2d Sess. 23, 24, 29-31 

(1986); H.R. Rep. No. 855, 99th Cong., 2d Sess., pt. I, at 4, 18, 31-32 (1986). No conference report 

was prepared for the final legislation. Nothing in this brief legislative history contradicts our conclusions.

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(B) will serve to encourage further cooperation between the recipient state or local agency and Federal law enforcement agencies.

21 U.S.C. § 881(e)(3).

As with section 981, nothing in the text of section 881(e)(1)(A) requires 

that the state or local agency use transferred property for law enforcement 

purposes or that the agency retain the property rather than transfer it to 

another agency. In fact, while section 881(e)(1)(E) requires that property 

retained by the Attorney General must be retained “for official use,” no 

similar restriction appears with respect to the property transferred to state or 

local agencies.3

The text of section 881(e)(1)(A) does not expressly contain discretionary 

authority for the Attorney General to impose terms and conditions on the 

transferred property. Section 881(e)(3)(B) does, however, require the Attorney General to assure that the transferred property serve to encourage further 

state-federal cooperation. That requirement provides a basis for imposing 

conditions restricting the use o f the forfeited property if the Attorney General determ ines that such conditions would be appropriate to further 

cooperation. For example, the Attorney General might determine that requiring the state or local agency to retain the property and to use it in future 

law enforcement activities is an appropriate means of furthering state-federal cooperation. Alternatively, the Attorney General might determine that 

transferring forfeited property with no restrictions or conditions simply as a 

reward for the state or local agency’s efforts would be an appropriate means 

of assuring further cooperation. We emphasize that, while requiring the 

Attorney General to assure further cooperation, section 881(e)(3) does not 

require any particular means for doing so. The Attorney General may, therefore, choose any appropriate means to accomplish the statutory objective.

JOHN C. HARRISON 

Deputy Assistant Attorney General

Office o f Legal Counsel

3The Attorney General’s authority to transfer forfeited property to state and local law enforcement 

agencies was added to section 881 by the Comprehensive Crime Control Act of 1984, Pub. L. No. 98- 

743, tit. II, § 309, 98 Stat. 1837, 2051-S2. The Senate report on that legislation explained the purpose 

behind the amendment as follows:

[The amendment] provides that the Attorney General may transfer drug-related property forfeited under title 21, United States Code, to another Federal agency, or to an assisting State or 

local agency.. . . Often State and local law enforcement agencies give significant assistance 

in drug investigations that result in forfeitures to the United States. However, there is presently no mechanism whereby the forfeited property may be directly transferred to these agencies fo r their official use. This am endm ent. . . will permit such transfers and thereby should 

enhance important cooperation between Federal, State, and local law enforcement agencies 

in drug investigations.

S. Rep. No. 22S, 98th Cong., 2d Sess. 216 (1983) (emphasis added). Our interpretation of section 

881(e)(1)(A) is consistent with this passage from the legislative history. Section 881(e)(1)(A) does allow 

forfeited property to be transferred to state and local law enforcement agencies for their official use, but 

it does not prohibit those agencies from retransferring the property.

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