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Lewis Morris / July 19, 2017

Sessions Plans to Increase Civil Asset Forfeiture

The AG is a stand-up law-and-order guy, but this should sound alarms for people who fear the overreach of government power.

Attorney General Jeff Sessions announced this week that there are some changes coming soon as the Department of Justice (DOJ) doubles down on the federal government’s civil asset forfeiture program. Sessions is a stand-up law-and-order guy, but this should sound alarms for people who fear the overreach of government power and who value the protections of the Fourth and Fifth Amendments.

The civil asset forfeiture program was introduced in the 1980s as a tool in the war on drugs. The idea was to seize property from drug dealers obtained with the profits of their illegal activity. This included cash, cars, guns, homes and so forth. Eventually the program grew to encompass criminals involved in other federal crimes. Then it spread to the states, where local law enforcement organizations also got involved in seizing assets. Before long, people who were merely accused of a crime, not convicted, could face seizure of their assets.

That’s what happens when the government obtains a little power — it pushes to acquire increasingly more of it.

As you might guess, even people cleared of crimes have an extremely hard time getting their property back. The Drug Enforcement Administration (DEA) alone seized over $4 billion in cash from drug suspects over the last decade, but $3.2 billion of that money never led to any criminal charges.

The civil asset forfeiture plan was originally designed to return the profits from criminal enterprises back to their victims. But law enforcement organizations such as the DEA and ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives) get their fair share of the proceeds as well. Which makes it easy to understand why law enforcement continues to back a program that is losing support among the public.

Supreme Court Justice Clarence Thomas voiced his dissent about the program this June regarding a case the Court refused to hear. "This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses,“ Thomas wrote.

Indeed. A study by Reason magazine of 23,000 property seizures in Cook County, Illinois, over five years found that a high degree of those seizures took place in some of Chicago’s poorest neighborhoods.

A study published in March by the Office of the Inspector General at the Department of Justice noted that the DOJ’s asset forfeiture program seized $28 billion in property over the last 10 years. The IG looked at 100 seizure cases and found that only 44 were related to ongoing investigations, resulted in further investigation, yielded arrests or led to prosecutions.

We’ve chronicled individual stories of abuse and flagrant Fourth and Fifth Amendment violations, too.

Thirteen states now require conviction before asset forfeiture can take place. Seven states and the District of Columbia block the proceeds of those seizures from going to law enforcement. This is a good start to keep corruption from spreading, but the Obama Justice Department did an end run around this trend in 2016 by ramping up the Equitable Sharing Program, which basically allows law enforcement agencies to prosecute seizure cases under federal law. This allows them to circumvent any state laws barring seizure before conviction or sharing the proceeds with police departments.

Rep. Darrell Issa (R-CA) is not pleased. "This is a troubling decision for the due process protections afforded to us under the Fourth Amendment as well as the growing consensus we’ve seen nationwide on this issue,” Issa said in the statement. “Ramping up adoptive forfeitures would circumvent much of the progress state legislatures have made to curb forfeiture abuse.”

Nevertheless, Sessions said, “President Trump has directed this Department of Justice to reduce crime in this country, and we will use every lawful tool that we have to do that. We will continue to encourage civil asset forfeiture whenever appropriate in order to hit organized crime in the wallet.”

Given Sessions’ longstanding backing of asset forfeiture, the big concern about his recent announcement is that he might be looking to shore up the Equitable Sharing Program to give more teeth to federal law enforcement at the expense of states’ rights. It must be said that his overall efforts to enforce the law are a welcome change from the Eric Holder/Loretta Lynch days of lawless tyranny, but civil asset forfeiture is not good policy — exercise of it frequently violates the Fourth and Fifth Amendments — and we encourage true reform.


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