“No criminal should be allowed to keep the proceeds of their crime,” Sessions says of law that lets police take cash without charging anyone with a crime.
C.J. Ciaramella, Jul. 17, 2017
U.S. Attorney General Jeff Sessions said the Justice Department will issue new directives to increase the federal govenment's use of civil asset forfeiture, a controversial practice that allows law enforcement to seize property from suspected criminals without charging them with a crime.
Speaking at a National District Attorneys Association conference in Minneapolis Monday, Sessions said state and local law enforcement could expect changes from U.S. Attorneys in several areas: increased prosecution of gun crimes, immigration offenses, gang activity, and prescription drug abuse, as well as increased asset seizure by the federal government.
"[W]e hope to issue this week a new directive on asset forfeiture—especially for drug traffickers," Sessions said. "With care and professionalism, we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their crime. Adoptive forfeitures are appropriate as is sharing with our partners."
The Justice Department did not immediately respond to a request for comment and for more information about the directive.
Asset forfeiture became a prized hammer in law enforcement's tool chest in the 1980s, when the government was struggling to combat organized drug cartels. Law enforcement groups say the laws allow them to disrupt drug trafficking operations by targeting their proceeds—cars, cash, and guns.
However, the practice has exploded since then, and civil liberties groups and political advocacy organizations, both liberal and conservative, say the perverse profit incentives and lack of due process for property owners lead to far more average citizens having their property seized than cartel bosses.
Sen. Mike Lee (R-UT), a consistent Republican advocate for reforming asset forfeiture laws, said in a statement to Reason Monday: "As Justice Thomas has previously said, there are serious constitutional concerns regarding modern civil asset forfeiture practices. The Department has an obligation to consider due process constraints in crafting its civil asset forfeiture policies."
The Justice Department plays a huge role in asset forfeiture through its Equitable Sharing Program, which allows state and local police to have their forfeiture cases "adopted" by the federal government. The feds take over the case, and the seized money is put into the equitable sharing pool. In return, the department gets up to 80 percent of those funds back. The equitable sharing program distributes hundreds of millions of dollars a year to police departments around the country.
Darpana Sheth, an attorney for the Institute for Justice, a libertarian-leaning public interest law firm, called Sessions' announcement "a disheartening setback in the fight to protect Americans' private property rights" in a statement Monday.
"Ordinary Americans see that civil forfeiture is unconstitutional, and 24 states have taken steps to roll back civil forfeiture laws," Sheth continued. "The Attorney General's plan to increase forfeitures is jarringly out of step with those positive developments."
A 2014 Washington Post investigative series found that warrantless police seizures of cash through the equitable sharing program have boomed since 9/11, hauling in $2.5 billion.
Reason investigations of asset forfeiture data showed that Chicago's poor neighborhoods were hit hardest by asset forfeiture. Meanwhile in Mississippi, law enforcement recorded many big hauls of cash, but state court records were also littered with petty and abusive seizures.
Asset forfeiture opponents say the equitable sharing fund essentially allows local and state police to avoid state laws restricting asset forfeiture by going through the federal government.
Responding to increasing media scrutiny and public outcry, former Attorney General Eric Holder took limited steps in 2015 to reform the Justice Department's equitable sharing program.
Although the details have yet to be released, Sessions' directive appears likely to loosen the restrictions on "adoptions" of forfeiture cases by the federal government—an alarming prospect for opponents of asset forfeiture.
"Reversing the ban on adoptive seizures would revive one of the most notorious forms of forfeiture abuse," Sheth said. "So-called 'adoptive' seizures allow state and local law enforcement to circumvent state-law limitations on civil forfeiture by seizing property and then transferring it to federal prosecutors for forfeiture under federal law. Bringing back adoptive seizures would create a road map to circumvent state-level forfeiture reforms."
Sessions' upcoming directive to increase asset forfeiture comes as little surprise. Sessions, a former prosecutor and U.S. senator, has been a stalwart defender of asset forfeiture throughout his career. He has already dismantled Obama-era directives on drug sentencing guidelines and ordered a review of all of the existing consent agreements between the Justice Department and police departments that were found to be violating residents' constitutional rights.
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