The Justice Department’s asset-forfeiture policies should frighten conservatives, who are supposed to believe in due process and property rights.
Attorney General Jeff Sessions places so much trust in the noble motives of government bureaucrats that he wants them to protect their powers to take your cars, cash, homes, and other property simply on their say-so. Cops don’t need to convict you of anything — they can simply take your property if they suspect it has been used in any sort of crime. And they can use the money to buy fancy new vehicles for the SWAT team or to remodel the office.
The process is known as civil asset forfeiture, and it’s one of the most obnoxious and un-American policies imaginable. Remember those old Southern speed traps, where police agencies build their budgets off of unsuspecting out-of-staters driving a few miles over the speed limit? Well, asset forfeiture puts those second-rate operations to shame.
Speaking to the National Sheriffs’ Association in Washington, D.C. last month, Sessions said 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.” He said it “takes the material support of the criminals and makes it the material support of law enforcement.”
It does that in some cases, but — in the name of fighting crime and drug cartels — it also takes the material support of average Americans and gives it police agencies to spend in all sorts of ways. It obliterates the Constitution’s requirement for due process. Oh sure, you can hire a lawyer and spend years going through the administrative hearing process to try to get your property back, but good luck with that. It also corrupts police agencies by giving them a profit motive in their enforcement of the nation’s ever-expanding legal code.
There are endless examples of the misuse of this process. If, say, someone steals your car and takes it for a joyride, the government can then take that car — even though you had nothing to do with the crime that was committed with the vehicle. The courts are filled with cases with names such as, The State of California v. a 1997 Buick LeSabre. Prosecutors aren’t targeting owners, who would then get the chance to appear in court. They file suit against the inanimate object, which then allows them to take it and give themselves big bonuses.
In some cases, the cops pull someone over for speeding and find that they are traveling with a few thousand dollars in cash. They take the money — and even if it’s proven that these were legitimate savings and not drug proceeds — and won’t give it back. They know it will take more money to fight for its return than to let it go. As the Bureau of Alcohol, Tobacco, and Firearms (and now Explosives) once printed on penknives that it gave to its agents: “ATF: Always Think Forfeiture.” It’s a great way to keep government budgets flush with cash.
Even if you fight, you’ll probably lose in court. The U.S. Supreme Court refused to hear the case, Leonard v. Texas, in which Texas authorities seized $201,000 from a safe found in the back of a car it had pulled over. The driver contended that the money was from the sale of his mother’s house in Pennsylvania — and the safe included a bill of sale from the house, according to news reports. The courts found that the suspicious nature of the stop and conflicting testimony from the car’s occupants were sufficient reason to let the government keep the cash.
Justice Clarence Thomas slammed the high court’s refusal to review the case, noting “this system — where police can seize property with limited judicial oversight and retain for their own use — has led to egregious and well-chronicled abuses.” Well, yeah. If you give government officials the incentive to wantonly violate our rights, it shouldn’t be surprising that many government officials routinely use the power afforded them.
In some cases, police have even targeted really cool cars that they would like to have for the department, or vehicles that are owned outright (it makes it easier to take if you don’t have to deal with the note holder), thus distorting law-enforcement priorities. In one case in Anaheim, the city and the feds tried to swipe a $1.5 million building from its owners (representing their life’s savings) after one of their tenants allegedly improperly sold $37 of marijuana to an undercover officer.
The case ultimately was dropped amid bad publicity, but that’s chilling. How would you like to lose your property because of something done by a tenant? How would you like to have your ranch seized after police, working with the U.S. Department of Justice and the Environmental Protection Agency, allege some violation of the Endangered Species Act? The system works like Donald Trump’s stated view of gun rights: The government just takes the property and worries about due process later.
But, don’t worry. Sessions, in new DOJ guidelines he issued last July, argued that “our law-enforcement officers do an incredible job.” After all, only four of five administrative forfeiture cases were never challenged in court. And he assured us that new “safeguards,” such as allowing department lawyers to review cases to see whether forfeiture is proper, will protect the public’s property rights. Of course, those department lawyers have every reason to side with the government’s property takers.
None of the superficial reforms do anything to reduce the incentive by police agencies and the federal government to take property. Sessions has also undermined the traditionally conservative principle of federalism, where states have the right to establish their own law in many areas. Many states have instituted reforms that reduce the ability of agencies to profit from their takings, or which require a conviction before a taking. To get around those laws, police engage in an “equitable sharing” program. They partner with the feds and then split the loot. Sessions wants those programs to proceed despite some state laws limiting them.
Sessions also noted that asset forfeiture is used properly in the “vast majority of cases.” He’s apparently unaware that in 87 percent of these takings cases there is no underlying criminal conviction. That touches on the only reform that will uphold the tenets of the Constitution. Police and Justice officials can still use asset forfeiture to grab the loot from criminal cartels. They simply need to do the hard work of convicting people first. It would also help if the agencies that grabbed the money didn’t get to keep it to reduce this Third-World-style conflict of interest.
Two of the Justice Department’s top officials who helped create the asset-forfeiture program during the 1980s drug war, John Yoder and Brad Cates, argued in a 2014 Washington Post column that the program has turned into an evil. They argued that “civil forfeiture is fundamentally at odds with our judicial system and notions of fairness. It is un-reformable.” Someone ought to send a copy to Sessions or, better yet, confiscate his property. I’m sure he did something wrong with that whole Russia thing. Why even bother to prove it?
Steven Greenhut is Western region director for the R Street Institute. Write to him at firstname.lastname@example.org.