Law enforcement’s ability to seize your property without a criminal conviction grew last week.
On Wednesday, Attorney General Jeff Sessions announced an expansion of the ability of law enforcement agencies around the country to receive funds through the use of civil asset forfeiture.
Civil asset forfeiture is the practice of law enforcement agencies seizing assets they believe have been used to commit a crime, including cash believed to have been obtained in illegal drug transactions. Property owners need not be convicted or even charged with any crime in order to have their assets seized.
Many states have passed reforms to limit the practice, but even in those states, agencies could still receive forfeited assets when they assist in a federal investigation. In 2015, President Obama’s Attorney General Eric Holder had required law enforcement agencies to obtain a warrant or file charges in order to seize assets. Those limited protections have now been reversed by Attorney General Sessions.
Daparna Sheth of the Institute for Justice, a national leader in fighting for the repeal of civil asset forfeiture, weighs in:
“Civil forfeiture is inherently abusive. No one should lose his or her property without being first convicted of a crime, let alone charged with one. The only safeguard to protect Americans from civil forfeiture is to eliminate its use altogether. The Department of Justice’s supposed safeguards amount to little more than window dressing of an otherwise outrageous abuse of power.
“We have consistently warned that the modest reforms put in place in 2015 could be rolled back with the stroke of a pen—and that is precisely what Attorney General Sessions has done today. The DOJ’s directive, announced to a room full of law enforcement officials who stand to reap the profits of this new policy, shows the fundamental absurdity of a system of justice which prioritizes funding law enforcement over protecting constitutional rights or fighting crime.
“As the Justice Department’s Inspector General recently reported, the Department does not collect data to measure how often seizures and forfeitures advance criminal investigations. And the inspector general’s review of 100 cash seizures conducted by the Drug Enforcement Administration found that the agency could verify that fewer than half advanced or were related to an ongoing investigation.
“The Justice Department’s new forfeiture directive restores the ability of state and local law enforcement to reap 80 percent of forfeiture proceeds by using federal forfeiture laws to circumvent protections put in place by state legislatures.” [Institute for Justice]
Damon Root writes:
“By ordering the expansion of this unconstitutional practice, Sessions has placed himself on a collision course with Supreme Court Justice Clarence Thomas. As Thomas recently explained in a statement respecting the denial of certiorari in the case of Leonard v. Texas, not only has civil asset forfeiture ‘led to egregious and well-chronicled abuses’ by law enforcement agencies around the country, but the practice is fundamentally incompatible with the Constitution.
“Thomas did not mince words. The legal justifications offered in defense of civil asset forfeiture, he pointed out, cannot be squared with the text of the Constitution, which ‘presumably would require the [Supreme Court] to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation.’ Those other doctrines, Thomas noted, impose significant checks on the government, such as heightened standards of proof, numerous procedural safeguards, and the right to a trial by jury. By contrast, civil asset forfeiture proceedings provide no such constitutional protections. Thomas left little doubt that when the proper case came before him, he would rule civil asset forfeiture unconstitutional.” [Reason]
And the editors of National Review write:
“There is such a thing as criminal forfeiture, but what is at issue is mainly civil forfeiture, meaning property seizures that are conducted under civil law rather than the criminal-justice process, which has more robust protections and higher standards of evidence. This produces perverse outcomes in which American citizens are punished by their government for crimes with which they have not even been charged, much less convicted. In the past decade, the Drug Enforcement Administration alone has seized some $3 billion in cash from people who have not been charged with any crime.
“This is almost certainly unconstitutional, something that conservatives ought to understand instinctively. Like the Democrats’ crackpot plan to revoke the Second Amendment rights of U.S. citizens who have been neither charged with nor convicted of a crime simply for having been fingered as suspicious persons by some anonymous operative in Washington, seizing an American’s property because a police officer merely suspects that he might be a drug dealer or another species of miscreant does gross violence to the basic principle of due process.” [National Review]
