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.
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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