There’s nothing “civil” about civil asset forfeiture. It’s a law enforcement practice of seizing assets of suspects, who may or may not have broken the law, and it invites abuse. But Attorney General Jeff Sessions wants to expand it.
He promised the National District Attorneys Association Monday in Minneapolis that he would soon issue a new directive to increase, not decrease as he should, the ability of law enforcement agencies to help themselves to the cash and property of suspects who have not had their day in court.
“With care and professionalism, we plan to develop policies to increase forfeitures,” Mr. Sessions told the prosecutors. “No criminal should be allowed to keep the proceeds of their crime.” Indeed he should not. But prosecutors should convict first, collect later.
Civil asset forfeiture has been widely abused at both the federal and the state and local levels, and the innocent have lost hundreds of millions of dollars in cash and property.
According to the U.S. Justice Action Network, the federal Asset Forfeiture Fund netted a total of about $8 billion from 2014 through 2016, though it’s not clear how much of that came from innocent property owners.
On July 1, reforms to Tennessee’s civil asset forfeiture laws enacted by the state legislature became effective. Passage of the reforms followed a Knoxville lawyer’s testimony about how a client had been pulled over on suspicion of drunken driving, and entered a nightmare.
She was charged with possessing prescription drugs that turned out to be a store-bought antacid. Police seized $11,000 of her cash that was not from the sale of drugs, prescription or otherwise, but from settling her late mother’s estate. The charges were finally dropped, and she got her money back, but she had to spend a lot of it on a lengthy legal fight. Governments don’t like to admit mistakes, even egregious mistakes.
The abuse of civil asset forfeiture is so widespread, and in many instances so gratuitous, that advocates at both ends of the political spectrum, including FreedomWorks and Americans for Tax Reform on the right and the ACLU and the NAACP on the left, have joined forces to argue for changes in the law.
Under state and federal law civil asset forfeiture empowers police and prosecutors to seize cash and private property — jewelry, cars, boats, even homes — without a search warrant, much less an indictment or conviction.
Standing the constitutional concept of “innocent until proven guilty” on its head, civil asset forfeiture places the burden on the suspect to prove the “innocence” of the cash and property — i.e., that they are not the fruit of illicit activity — before he or she can get property returned.
Civil asset forfeiture has become a revenue stream that police departments and prosecutors’ offices rely on to supplement appropriated budgets. This inevitably provides an incentive to make more of those seizures.
A growing number of critics describe civil asset forfeiture variously as “legal plunder,” “policing for profit” and “theft by cop.” What else should they call police departments and prosecutors’ offices balancing their budgets on the backs of those who are innocent until proved guilty?
Civil asset forfeiture was initially used to deprive drug dealers, money launderers and other major wrongdoers of their loot, and it remains a way of combating genuine criminal activity. But shortcuts through the law are always suspect, and many states have reformed the law in recent years, among them Montana, New Mexico, Nebraska and New Hampshire.
Mr. Sessions’ proposal would enable local authorities to bypass restrictive state law to seize property under federal law. The proceeds would be shared with federal counterparts. The Sessions directive would impose certain safeguards, but potential for abuse would remain. We’re disappointed that Mr. Sessions is on the wrong side of civil-asset reform.