Law & the Courts

Jeff Sessions Should Drop His Expansion of Civil Asset Forfeiture

(Reuters photo: James Lawler Duggan)

Attorney General Jeff Sessions should reconsider his plan to expand the use of civil asset forfeiture in the service of the so-called war on drugs. If he fails to do so, Congress should reconsider it for him — indeed, Congress ought to act on asset-forfeiture reform irrespective of the attorney general’s views on the matter.

Asset forfeiture is a constitutionally questionable practice whereby property — often cash — is taken from citizens by police agencies who suspect, or at least say they suspect, that the property may have been come by illegally, often through the drug trade. Cash seized through asset forfeiture can be used by police departments, as can cash generated through the sales of seized property such as vehicles. The fact that police personnel can materially benefit from forfeiture proceedings creates a conflict of interest that would render forfeiture problematic even if it were used with discretion in accordance with the highest degree of procedural protections for the rights of the accused.

It isn’t.

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. No doubt many of the men and women on the terrorism watch list are genuine bad guys, and no doubt many of those who have lost their property to asset forfeiture are peddling dope. But we are a nation of laws, which means a nation of procedural justice. If the DEA or the LAPD wants to punish a drug trafficker, then let them build a case, file charges, and see the affair through to a conviction. We have no objection to seizing the property of those convicted of drug smuggling — or of crimes related to terrorism, or many other kinds of offenses. We object, as all Americans should object, to handing out these punishments in the absence of a criminal conviction.

The specific issue here mainly touches on Sessions’s plan to revoke certain Obama-era restrictions on asset forfeiture. In response to the general unjustness of asset forfeiture and specific cases of abuse associated with it, many states have limited the use of the process, and 13 of them require an actual criminal conviction before seizing assets. But the federal government offered police agencies operating under more restrictive state rules an out in the form of cooperative seizures — “equitable sharing,” they call it — under which federal authorities accepted seized assets in a cooperative capacity and then shared them with local agencies. Which is to say, the federal government set up a program of official money-laundering in order to make an end run around state laws. Cute, that. The Obama-era reforms cut back on that, and Sessions means to return to the status quo ante as part of an aggressive new campaign to expand the use of forfeiture against drug traffickers.

No American should be deprived of liberty or property without due process.

Which is to say, conservatives should object to this on due-process grounds and on Tenth Amendment grounds — if the states wish to restrict the use of asset forfeiture, then Washington has no business interfering. Conservatives, and all Americans, also should object to the abuses of forfeiture that have been well documented for years. See, for example, the “Policing for Profit” report from our friends at the Institute for Justice.

We admire a great deal about Jeff Sessions, but his determination to prove an atavistic drug warrior is lamentable. But the case against asset forfeiture need not be restricted to those who take a libertarian view of drug decriminalization. The question here is not the legal status of marijuana but the legal status of due-process protections, as well as the ability of the states to decide for themselves how their law-enforcement agencies will conduct their business.

We hope that the attorney general sees the light on this issue. But even if that is unlikely, we know Jeff Sessions to be a man with a deep commitment to the law, which is why Congress ought to act on its own to legislatively restrict the use of civil forfeiture at the federal level and to prohibit “equitable sharing” shenanigans outright. No American should be deprived of liberty or property without due process, and the process due in these cases — which are predicated on underlying criminal activity — is a criminal trial rather than a civil action.


Civil Asset Forfeiture: Where Due Process Goes to Die

On Civil Asset Forfeiture, Jeff Sessions Is the New Kamala Harris

Justice Thomas Defends Victims of ‘Policing for Profit’


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