The Justice Department, rolling back an Obama-era directive, will seize more cash and property from suspected criminals, whether or not they have been charged with a crime, Attorney General Jeff Sessions said Wednesday.
At a televised meeting with law enforcement leaders from around the country, Sessions laid out a new policy directive regarding the Justice Department’s Equitable Sharing Program, which distributes hundreds of millions of dollars a year in asset forfeiture revenue to state and local police departments.
“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,” Sessions said. “We will continue to encourage civil asset forfeiture whenever appropriate in order to hit organized crime in the wallet.”
Civil asset forfeiture is a controversial practice that allows police to seize cash and property suspected of being connected to criminal activity. The property owner does not have to be convicted or even charged with a crime to have his or her property seized and forfeited by the government.
Under the equitable sharing program, federal authorities may “adopt” state and local forfeiture cases and prosecute them at the federal level. Those local police departments get to keep up to 80 percent of the forfeiture revenue, while the rest goes into the equitable sharing pool and is distributed among partner departments around the country. The new policy lifts restrictions put in place by former attorney general Eric Holder in 2015 that limited when federal authorities could adopt forfeiture cases.
Law enforcement groups say asset forfeiture is a vital tool to combat drug trafficking and other organized crime, and they argue the equitable sharing program provides essential funding for police equipment. The body armor used by police at the Pulse nightclub shooting in Orlando, one attendee at Wednesday’s meeting noted, was bought using equitable sharing funds.
However, asset forfeiture opponents say the program allows police departments to skirt stricter state laws surrounding asset forfeiture by having their cases moved to the federal level. And while police should be well funded, they argue, that money shouldn’t come property seizures that aren’t accompanied by criminal convictions and due process protections.
A 2014 Washington Post investigative series found that police raked in $2.5 billion since 9/11 in cash seizures during highway traffic stops, all of them without warrants or accompanying indictments. In one notorious case, Oklahoma police seized more than $50,000 from a touring Christian rock band from Burma on suspicion that they money was connected to drugs.
More than 20 states have passed some form of civil asset forfeiture reform in recent years, and incidents like those above have also led to federal reform efforts by a bipartisan group of civil liberties organizations and lawmakers in Congress.
“The Fifth Amendment protects us from the government depriving us of our property without due process of law,” Sen. Rand Paul (R-KY) says in a statement to Reason. “I oppose the government overstepping its boundaries by assuming a suspect’s guilt and seizing their property before they even have their day in court.”
Earlier this week, responding to Sessions’ preview of the upcoming policy directives, Sen. Mike Lee (R-UT) urged the Justice Department to consider the constitutional concerns raised by Supreme Court Justice Clarence Thomas in his notable dissent in an asset forfeiture case this June.
The Justice Department did include several requirements that it says will safeguard the due process rights of property owners. The directives require state and local police to provide additional information showing probable cause that a crime occurred before federal authorities will adopt the seizure. Seizures of under $10,000 will have to be accompanied by a warrant, a related arrest, or the seizure of contraband. Absent those provisions, a U.S. attorney would have to sign off on an adoption.
Law enforcement leaders applauded the decision.
“Next to putting cartel leaders in the penitentiary, asset forfeiture is the strongest tool law enforcement has to hurt the drug cartels and assist law enforcement in the fight against illegal drugs,” National Sheriffs’ Association president Harold Eavenson said in a statement. “Minimizing the ability to utilize this tool properly will only make the fight against the cartels more difficult for law enforcement and prosecutors.”
Civil liberties groups like the Institute for Justice, a public interest law firm that has challenged asset forfeiture laws in several states, said the safeguards won’t stop abusive seizures or eliminate the perverse profit incentives that lead police to go after average citizens, rather than cartel bosses.
The only way to fully protect innocent Americans from civil asset forfeiture “is to eliminate its use altogether,” Darpana Sheth, an IJ attorney said in statement Wednesday.
“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,” Sheth said. “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.”
A $10,000 limit would not have stopped several high profile cases like the Burmese rock band. Sheth says the policy expects law enforcement to police itself, rather than strengthening judicial review of forfeiture.
A Justice Department Inspector General report released this March found that the Drug Enforcement Administration (DEA) seized more than $4 billion in cash from people suspected of drug activity over the last decade, but $3.2 billion of those seizures were never connected to any criminal charges.
Holder’s 2015 reforms only restricted adoptive seizures, which account for a relatively small number of seizures that go into the equitable sharing fund. The majority of the seizures come from joint task forces of federal and local police.
“We would agree that the Holder reforms were modest, but they were still significant,” Sheth said. “Rolling them back is definitely going to be a setback for people who believe in property rights and due process.”
Sessions is a staunch defender of police and tough sentencing laws, and since taking over the reins of the Justice Department he has rolled back several Obama-era policies, such as directives to moderate how federal law enforcement prosecuted low-level drug crimes. In statement Wednesday, American Civil Liberties Union legislative counsel Kanya Bennett said the new asset forfeiture directive was “part of Sessions’ agenda to bring back the failed and racist War on Drugs.”
“During widespread bipartisan momentum to reform asset forfeiture, it is outrageous that Attorney General Sessions wants to increase law enforcement seizures of people’s money, cars, and other property,” Bennett said. “We are talking about people who have not been convicted of a crime and are often not given a day in court to reclaim their possessions. Civil asset forfeiture is tantamount to policing for profit, generating millions of dollars annually that the agencies get to keep.”
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