- - Friday, February 6, 2015

ANALYSIS/OPINION:

A “wonderful tool” for law enforcement. That’s what Loretta Lynch, President Obama’s nominee to replace Eric Holder as Attorney General, had to say about forfeiture at her recent Senate confirmation hearing. According to Lynch, civil forfeiture occurs “pursuant to supervision by a court,” so that “protections are there” to safeguard property owners.

Try telling that to the Hirsch brothers.

Federal prosecutors working under Lynch’s supervision put the brothers through a civil forfeiture nightmare. For twenty-seven years, Jeff Hirsch has distributed candy, cigarettes, and other products to convenience stores. His father was in the business before him, and Jeff’s brothers are partners in the business. The brothers work hard, sometimes eleven hour days, to make an honest living. But in May 2012, prosecutors from the Office of the United States Attorney for the Eastern District of New York—the office currently run by Lynch—teamed up with the IRS to seize the business’s entire bank account totaling nearly $450,000 simply because the brothers deposited cash in amounts under $10,000.

The government never alleged that this money was anything other than the lawfully earned proceeds of the brothers’ legitimate business.

Lynch says that civil forfeiture occurs under the “supervision” of the courts. But prosecutors in Lynch’s office held the Hirsch brothers’ money for almost three years without giving the brothers an opportunity to present their story to a judge.

Federal law is supposed to prevent that kind of delay. The Civil Asset Forfeiture Reform Act, enacted in 2000, requires prosecutors to bring their case to a judge within a few months of seizing property. But Lynch’s office has adopted an aggressive and implausible interpretation of that law, under which it asserts the right to hold property for up to five years without giving the owner any hearing before a judge.

The result is a practice that looks a lot like extortion. Rather than prove their case to a judge, prosecutors from Lynch’s office demanded that the brothers sign over a hefty portion of their bank account to the government in order to get back the remainder.

The kicker: When the Hirsch brothers refused to pay, and instead took their story to the media, prosecutors suddenly changed their minds and returned the entire amount. After putting the brothers through the wringer, prosecutors walked away entirely rather than try to prove the Hirsch brothers had done something wrong.

Lynch’s office didn’t pay interest on the money and didn’t do anything to compensate the brothers for the tens of thousands of dollars they had to spend to get their money back.

For the brothers, there was nothing “wonderful” about this experience. Civil forfeiture drove their business to the edge of insolvency. The brothers had to scramble to replace funds that would have been used to pay vendors and to keep on the lights. The business survived only thanks to the extraordinary generosity of longtime business partners.

Lynch should explain what role she had in formulating the policies applied in the Hirsch brothers’ case, and what policies she would adopt as Attorney General to prevent similar delays in other cases. Senators should demand that Lynch repudiate the interpretation of the Civil Asset Forfeiture Reform Act adopted by her office. And, most important, Lynch should whole-heartedly commit to comprehensive reform of the policies that allowed the Hirsch brothers’ nightmare to take place.

As Attorney General, Lynch will have more power than almost anyone in the country to shape enforcement of the civil forfeiture laws. But if Lynch’s glib remarks about this “wonderful tool” are any guide, Americans will have to look elsewhere for meaningful reform.

Robert Everett Johnson is the Elfie Gallun Fellow for Freedom and the Constitution at the Institute for Justice, a libertarian public-interest law firm that litigates to secure Americans’ property rights and that represented the Hirsch brothers in their litigation against the IRS.

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