July 24, 2017

Reining in Civil Asset Forfeiture Abuse

Sessions insisted forfeiture is a “key tool” for enforcement. A constitutionally dubious money spigot for government is more like it.

On Jan. 20, 2015, the federal government dropped its case against the Hirsch family and returned $446,000 in assets and cash seized by the IRS. The agreement required the Hirschs to pay their own legal fees and cleared the feds of any wrongdoing. The problem? The Hirschs, who own a distribution company on Long Island, were never even charged with a crime, much less convicted. They were victims of civil asset forfeiture, a process whereby government can seize property and cash they suspect is related to the commission of a crime.

Last Wednesday, Attorney General Jeff Sessions ordered the expansion of civil asset forfeiture laws, insisting they are a “key tool” for enforcement.

A constitutionally dubious money spigot for government is more like it. And while CBS News painted Sessions’ decision as a “reversal” of former AG Eric Holder’s policies, the numbers tell a different story. During Holder’s tenure from 2009 through early 2015, the yearly dollar value of assets seized by the DOJ went from less than $2 billion to more than $5 billion.

Holder did indeed receive praise for ending the program. Yet as The Washington Post reported on March 28, 2016, the Obama administration’s DOJ — then headed by Loretta Lynch — was “resuming a controversial practice that allows local police departments to funnel a large portion of assets seized from citizens into their own coffers under federal law.”

It was a practice Lynch pursued with vigor during her tenure as U.S. attorney for the eastern district of New York. Her office collected more than $113 million in civil forfeiture actions between 2011 and 2013 — including the $446,000 from the Hirschs.

“Our country’s proud history of opposing government seizures of property goes back to the founding: American colonists protested broad warrants, called ‘writs of assistance,’ that British customs officers used to hunt for contraband,” writes Sen. Mike Lee (R-UT).

Colonial America was viewed by King George as a financial investment. British lawmakers abided that viewpoint, passing a number of revenue collection bills aimed at extracting as much money as they could from the colonies. When colonists resisted and engaged in smuggling to do so, writs of assistance were issued. They allowed authorities to search a person’s property with no notice or reason, and force people to cooperate.

This egregious overreach was one of the factors precipitating the American Revolution and the creation of the Fourth Amendment. When it became part of the Constitution, it only applied to the federal government. The Due Process Clause of the 14th Amendment expanded its application to the states. Regardless, the Supreme Court has “traditionally affirmed expansive civil forfeiture rules by reference to colonial practices rooted in admiralty, piracy, and customs law,” attorney David French explains.

And Sessions, using the never-ending war on drugs as his rationale, has re-instituted practices known as equitable sharing and adoption. “Those practices permit the federal government to process civil forfeitures on behalf of local officials,” Lee explains. “After the forfeiture has been processed and litigated under federal rules, the feds sell the property and give some of the cash back to the local officials. That allows local officials to bypass local laws, which often provide more procedural protections than federal rules. Both the local and federal officials benefit from the racket.”

The move seemingly undermines the 24 states and the District of Columbia that have passed civil forfeiture reform laws since 2014, including three — North Carolina, New Mexico and Nebraska — that have abolished civil forfeiture entirely. At best, Sessions’ efforts elicit substantial questions about federalism.

At worst, they completely mock due process. “In civil forfeiture, authorities don’t have to prove guilt, file charges or obtain a conviction before seizing private property,” Fox News explains.

Toward what end? An extensive 2010 report by the Institute for Justice reveals civil forfeiture is really about “policing for profit, as agencies pursue forfeitures to boost their budgets at the expense of other policing priorities.”

That’s a bit of an understatement. A report released last April by the DOJ’s Office of the Inspector General reveals its forfeiture programs brought in approximately $28 billion over the last decade. Appallingly, the report was based solely on a 100-case sample — because the feds don’t keep overall data for further study.

Those cases revealed that only 44 of the 100 seizures were connected to ongoing investigations, led to additional investigations, or precipitated arrests and/or prosecutions. “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 stated.

In an age where government at every level spends more than it takes in, is there any doubt this contemptible method of budget-padding resonates in far too many locales?

And not just in violation of the Fourth Amendment’s “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment states Americans cannot be “deprived of life, liberty, or property, without due process of law.” How that squares with law enforcement officials’ ability to seize assets prior to any process of law other than an unsubstantiated allegation is anyone’s guess.

Sessions is at loggerheads with Supreme Court Justice Clarence Thomas, whose track record on the subject reveals he is distinctly at odds with the practice. In 1993’s U.S. v. James Daniel Good Real Property, Thomas stated that he was “disturbed by the breadth of new civil-forfeiture statutes.” Three years later, despite deferring to the majority about the seizure of a wife’s car after her husband had sex with a prostitute in it, Thomas wrote a separate concurrence, stating those unaware of history and legal precedents “might well assume that such a scheme is lawless — a violation of due process.” And despite its ineligibility for Supreme Court review, Thomas nonetheless offered his opinion in Leonard v. Texas, where police again seized assets absent a criminal procedure. “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,” he wrote.

These abuses have prompted Congress to act. In March, Sen. Rand Paul (R-KY) introduced the Fifth Amendment Integrity Restoration Act. A companion bill was introduced by Rep. Tim Walberg (R-MI) in the House. Paul’s bill eliminates equitable sharing; reinstates the principle of innocent until proven guilty; requires clear and convincing evidence; protects the right of counsel; removes the profit incentive; reforms IRS seizures; and requires the DOJ to compile and publish data on seizures.

The effort appears to have bipartisan support. “There are over 200 editorials arguing to do away with civil forfeitures. It was part of both the Democratic and Republican platforms at last summer’s conventions,” Institute for Justice senior attorney Darpana Sheth told Fox News. “I can’t think of any other issue that enjoys such cross-aisle support.”

One hopes. And one hopes that, given President Donald Trump’s oft-stated commitment to law and order, he and Sessions recognize civil asset forfeiture laws are the epitome of an unconstitutional “ends justify the means” approach to law enforcement.

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