DOJ Expands Asset Forfeiture Program…Even in States That Have Banned It
Local authorities can bypass asset forfeiture laws through the DOJ’s “adoption” policy.
Attorney General Jeff Sessions has kept his word. The Department of Justice has expanded its asset forfeiture program that will allow authorities to seize a citizen’s property even if they have not been charged with a crime.
The DOJ’s program can even apply in the fourteen states that have banned civil asset forfeiture without a criminal conviction.
Civil Asset Forfeiture
As I have blogged before, civil asset forfeiture is “a process by which the government can take and sell your property without ever convicting, or even charging, you with a crime.”
The procedures are civil, which means defendants do not receive the same protections given to criminal defendants. Reason reported earlier this month:
In many cases, the person doesn’t even need to be charged with a crime. Instead the property itself is accused of being connected to criminal activity, and the owner of the property must (if he or she can afford it) prove the property wasn’t purchased or earned as a result of illicit activity.
While asset forfeiture is sold to the public as a way of separating criminal masterminds from the rewards of their illegal behavior, it is often used to seize small amounts of money and assets from low-level criminals (or alleged criminals). In Connecticut, the median forfeiture amounts for the past couple of years totaled less than $600. As this infographic from the Reason Foundation (the nonprofit that publishes this site) notes, it often costs more to hire a lawyer to fight asset forfeiture than the value of the property being seized.
The New Forfeiture Policy
Sessions has stated that “civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed, and it weakens the criminals and the cartels.”
Sessions insists these funds that allegedly “were once used to take lives are now being used to save lives.” I use the word allegedly because the people who have had their funds and property seized are only under investigation. No court has convicted them.
At least 14 states have passed laws that ban civil asset forfeiture without a criminal conviction. But now Sessions will allow local authorities to bypass these laws by using a practice called “adoption,” which means those authorities can give “seized assets to the federal government instead of returning them to their owners.”
Under this new policy, the states and local authorities “provide additional information about the probable cause determination justifying the seizure.”
The policy also issued safeguards for seizures valued $10,000 or less. The local authorities must have a state arrest warrant, make an arrest connected to the seizure, taking “contraband relevant to the forfeiture,” or if the person makes an admission “regarding the criminally derived nature of the property.” If the authorities cannot meet those four safeguards then the U.S. Attorney’s Office will decide on adoption.
The DOJ has tried to make these programs sound like everything will work out okay and the program does not violate anyone’s rights protected by the Fourth Amendment. From The Hill:
The Justice Department insists that the burden of proof will be on the government, not the property owner, and says it will institute practices that go beyond what the law requires to ensure protections for the innocent.
Law enforcement officers will go through extensive legal training on the matter, the DOJ said, adding that state and local agencies will have to provide more proof than ever before that seizures are justified and U.S. attorneys will expedite cases in which the seizures are challenged. The department also noted that the bulk of seizures are of guns, ammunition and cash and that most are not challenged in court.
In a Monday speech, Sessions said the seizures would be carried out with “care and professionalism.”
So since most aren’t challenged in court that makes this all okay?
The department memo on this program also said that in order for the property owners “to challenge the seizure as soon as practicable, the Department will expedite federal agencies’ decisions regarding adoptions and their provision of notice to interested parties.”
Isn’t that nice? So to make it easier for this person, who has not been convicted of a crime, to contest the seizure, the “[S]tate and local law enforcement agencies must request federal adoption within 15 calendar days following the date of the seizure” and then the “adopting federal agency must send notice to interested parties within 45 days of the date of seizure.”
Sessions is not the only one within the department that has forgotten that the accused has the exact same rights as everyone else. From The Washington Examiner:
Critics have argued the civil asset forfeiture seizes property from people who are innocent and are never charged with a crime. But Deputy Attorney General Rod Rosenstein told reporters on Wednesday that the aim of the change is to focus on assets related to criminal activity.
“It’s not about taking assets from innocent people,” Rosenstein said. “It’s about taking assets that are the proceeds of […] criminal activity, primarily drug dealing.”
Rosenstein added civil asset forfeiture is “not about criminal convictions, it’s about seizing the proceeds of crime. Sometimes there will be criminal prosecutions, sometimes there won’t.”
How does that make sense? It doesn’t.
The Old Policy
Former President Barack Obama’s Attorney General Eric Holder took steps to change the DOJ’s asset forfeiture program, according to CBS News:
His Democratic predecessor Eric Holder had tightened control of the department’s asset forfeiture operations amid concerns that property could be seized without judicial oversight and without the owner ever being charged with a crime.
Holder namely restricted the ability of the federal government to take possession of, or adopt, assets seized by local authorities, who could then share in the proceeds with their federal counterparts. Civil liberties groups and some members of Congress praised the move as a step toward reform because that practice made it easier for local authorities to circumvent state laws that were sometimes stricter than the federal ones governing seizures.
Criticisms
I’ve mentioned in other blogs that civil asset forfeiture is the one issue that brings both sides together. In Connecticut, the law to ban the practice passed in both chambers without a single no vote.
Sen. Mike Lee (R-UT) has been one voice who has repeatedly spoken out against the practice. Today was no different:
“Back in May I encouraged the Department of Justice to review its policies on civil asset forfeiture in light of increasing indications from the Supreme Court that this practice is constitutionally suspect,” Sen. Lee said. “Instead of revising forfeiture practices in a manner to better protect Americans’ due process rights, the DOJ seems determined to lose in court before it changes its policies for the better.”?
On May 31, Senator Lee, along with Senators Paul, Crapo, Udall, Heinrich, and King wrote to the Department of Justice regarding civil asset forfeiture. The letter read, in part, that DOJ “need not wait for Supreme Court censure before reforming [civil asset forfeiture] practices” and encouraging DOJ “to revise its civil asset forfeiture practices to reflect our nation’s commitment to the rule of law and due process.”
Rep. Darrell Issa (R-CA) worries about officials abusing the procedure:
“This is a troubling decision for the due process protections afforded to us under the Fourth Amendment as well as the growing consensus we’ve seen nationwide on this issue,” Issa said in a statement.
“Ramping up adoptive forfeitures would circumvent much of the progress state legislatures have made to curb forfeiture abuse. Criminals shouldn’t be able to keep the proceeds of their crime but innocent Americans shouldn’t lose their right to due process, or their private property rights, in order to make that happen.”
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Comments
I don’t understand why any conservative would expand the powers of the State like this. Very dissappointed in Sessions, and not just by this. Maybe he lives in a bubble and doesn’t get how the People’s Republic of Maryland will abuse this to pad their budget.
I’ll probably lose my life over this. If the State comes to seize my assets, I’ll go down shooting.
I don’t think you need to worry in MD. 0% of the proceeds go to law enforcement or local government.
In that great bastion of liberty, TX, 70% can go local. To quote from http://ij.org/report/policing-for-profit/grading-state-federal-civil-forfeiture-laws/: “n 2009, the tiny East Texas town of Tenaha (pop. 1,100) drew national attention when a lawsuit exposed a civil forfeiture scheme in which law enforcement netted millions of dollars through highway traffic stops”
If the state comes to seize your assets, you’ll most likely just wake up one day with empty bank accounts.
Sessions has never seen a violation of civil liberties that he didn’t approve of. He is truly a great american.
Yellowbelly found his voice and decided to speak again. Crawl away, little one.
Never lost it. What’s to say when all you’ve got is insults and ad hominem attacks.
You lose even when you win. Those Carrier jobs the YellowSnakeInChief ‘saved’ …. pfff they are gone again.
The money he ‘saved’ on the F-35 …. pfff the price just went up on the program.
Yeah, I’ll bet you are getting tired of winning. If not, you should be.
In a Monday speech, Sessions said the seizures would be carried out with “care and professionalism.”
And who doesn’t trust professional bureaucrats.
This is an abomination. I’m thoroughly disgusted with Sessions & his apparent priorities. They are not consistent with a limited government of enumerated powers.
He has the power to enforce federal law in all the states. Law enforcement is one of the few things the government, in particular the executive branch, is properly involved in.
Sessions has been a colossal disappointment. Fire him.
I hate to say it, but I agree. Sessions has been a disappointment. Fire him and replace him with an un-pre-recused badass like Rudy Giuliani.
Can the states pass laws banning “adoption” in cooperation with the feds? In the short term, can the state AGs ban “adoption?”
Given California’s example, Hell Yeah.
Sessions is without doubt the worst appointment Trump has made. He preemptively surrendered on Russia, leaving Trump to the wolves in the DOJ and Congress. He just talks with no
action on sanctuary cities. leaves the Title IX kangaroo court rape rules in place. Now this stupidity. Fire the idiot
Trump is doing fine on Russia. Maybe Sessions should not have recused and retained the power to fire someone like Mueller. Not sure, the Dems were playing all angles no matter which course was taken.
What is he supposed to do on sanctuary cities? He picks up those illegals he can, but he’s not in charge of state law. Federalism you know.
DeVos is in charge of the college kangaroo court problem, and she’s laid a foundation now for saying all those cases go to the police, which is after all the proper solution.
He did not “surrender” on Russia. He had no choice but to recuse himself, and did so completely without regard to who was demanding it. There is no way he could possibly be involved in an investigation into a campaign in which he was an active participant. He announced his recusal as soon as he had a deputy to whom he could leave it.
He has done everything in his power about sanctuary cities: cutting off their participation in those programs that Congress has explicitly linked to cooperation with federal enforcement, and that are rationally related to that purpose. There’s nothing more that the federal government can do about them. When all is said and done, sanctuary cities are simply standing on their constitutional right not to cooperate with federal law enforcement.
Title 9 has nothing to do with him. That you bring it up discredits your entire position.
But this stand of his is disappointing.
How in the world does this pass constitutional muster? What ever happened to “no person shall be deprived of life, liberty, OR PROPERTY” without due process of law? Has this practice been tested in SCOTUS?
Sessions says it’s the program put in during Reagan’s administration. If so, it’s had plenty of time to be challenged.
There is “due process of law”. These cases are brought as civil cases against the property, rather than as criminal cases against the owner, so the standard of proof is the preponderance of the evidence, and the owner is not entitled to any sort of legal aid. If the assets seized are worth less than the cost of hiring a lawyer and the time necessary for a lawsuit then there’s no point in doing anything. It’s an abomination, but unfortunately it’s 100% constitutional.
Civil cases against property are facially absurd. The only reference to property in the Constitution is in 4A, in the context of the term’s inherent definition of ‘belonging’ to a person. CAF is depriving ‘someone’ of property without due process.
Sorry, also mentioned in 5A. CAF flies in the face of both.
The practise of bringing civil cases against property goes back at least to the era of the founding, and none of the constitution’s framers seems to have had any objection to it. They were aware of it and didn’t prohibit it; therefore it’s constitutional.
Either here or on Drudge, I’m looking for a two-word headline: “Sessions Adjourned!” He has been a yuuuge and bigley disappointment. He was an early supporter of Trump, yet this is no reason for him to continue on. Resigning would be best for all concerned.
Maybe it’s necessary. Holder, who stopped much of civil asset forfeiture, was always about having more violence and turmoil. He’s Mr. Fast and Furious.
Sessions is about law and order. He sees the need to put it back.
I used to be a civil libertarian. Then when I see how the scum take advantage of it, I am more inclined to let the cops have some power. Granted that’s because I am settled and do not live at the margins. The Trump administration was put in office by people like me.
And by people like me, who believe strongly that CAF is an ends-justify-the-means, lazy-LEO cop-out, straight-out violation of the 4th Amendment. It needs to be put down.
This is the first serious breach of faith with the voters who put DT in office. It does not bode well. I can live with the idiots in Congress not being able to tie their shoes, but the Executive Branch should be fully on board with solid Constitutional principles and a bulwark against government over-reach, not an enabler of it. It is literally the only thing left with which to push back against judicial counter-Constitutionalism and legislative incompetence.
Until you describe how LEO can control the mobs without this tool but with more hard work (safe work at that, not taking undue personal risk) your comment is seriously lacking.
I live in the real world. The one where courts have not invalidated CAF in all the years since Reagan. Holder did it for one reason: he could sound principled while shackling law enforcement and letting the scum run free.
How are you going to deal with the scum? Don’t give me a bunch of idealism. Give me an answer.
False choice. I reject the premise that I, or anyone else, must offer an alternative to enforcing the Constitution. That scum exist in no way negates it. We deal with the scum with the Constitution we have.
So you don’t answer my question. Well Holder and Obama are gone, and we give our cops back the tools to win the fight.
The comment structure doesn’t let me reply directly to your ‘So you don’t answer my question’ rejoinder, artichoke, but here it is.
The ‘bad guys’ have the same constitutional rights as you and me, whether you like it or not, until conviction for a crime results in a restriction of those rights; incarceration for instance.
Wait till it’s your cash seized, or your car or house.
Perfect definition of a hypocrite.
Obviously, this will be a major tool against the medical marijuana industry.
I posted this in the earlier CAF thread:
http://ij.org/press-release/civil-forfeiture-inherently-abusive/
In hopes more will see & read it.
“But now Sessions will allow local authorities to bypass these laws by using a practice called “adoption,” which means those authorities can give “seized assets to the federal government instead of returning them to their owners.”
Is the equivalent of federalizing local government?
I wonder how a SCOTUS challenge would fare.
This has already been standard procedure for decades and SCOTUS has zero problem with it. I can understand that, because however abominable it is, there’s nothing in the constitution to prevent it, so on what grounds could SCOTUS object.
Here’s something many people don’t realize: the crime for which assets can be forfeited needn’t be that of the owner, and the owner needn’t have any knowledge of it. SCOTUS ruled that a woman’s car could be forfeited because her husband had taken it out to cruise for prostitutes. When she gave him permission to borrow the car she assumed the risk that he might use it for a criminal purpose. People have also lost their houses because a grandchild kept drugs there. Hotels have been forfeited because crimes were committed by guests, whom the owners were legally required to accommodate.
There’s nothing in the Constitution to prevent murder, either, so I’m not sure I follow this line of reasoning excusing what we both agree is abominable.
Indeed if the legislators choose not to ban murder, judges have no authority to do so themselves.
Understood. The statutes which permit CAF need to be narrowed or eliminated. Huzzah’s to the states which have attempted to do so.
Under New Mexico law, law enforcement agencies are prohibited from transferring property worth less than $50,000 to the fed and all proceeds go to the state’s general fund. They removed the incentive for local law enforcement to send cases to the fed by ensuring local law enforcement will not benefit.
Sorry for the black humor, but do we have a senator and an atty gen that both have brain tumors ?
I can not believe I was so totally misled, misinformed for so many years about the virtues and values supposedly held by jeff sessions !
This only takes one word to explain the whole thing…
Tyranny!