Civil Asset Forfeiture has been a hotly debated program, and Attorney General Jeff Sessions just removed a measure by the Obama administration that I agreed with. The directive implemented by the Obama administration prevented local law enforcement from circumventing their state restrictions on the practice.
Today Sessions ordered:
Federal forfeiture of property seized lawfully by state and local law enforcement agencies is authorized whenever the conduct giving rise to the seizure is in violation of federal law.
Asset forfeiture is one of law enforcement’s most effective tools to reduce crime and its use should be encouraged where appropriate.
Civil Asset Forfeiture was embraced during the War on Drugs to target cartels, but these laws have incentivized law enforcement’s seizure of citizen’s assets and currency with little to no evidence of criminality.
Law enforcement agencies before the Obama administration directive would get around state laws through a loophole called “adoption.” They asked federal agencies, such as the Drug Enforcement Administration, to take on forfeiture cases and then share the proceeds.
Sessions order also states:
This order does not affect the ability of state and local agencies to pursue the forfeiture of assets pursuant to their respective state laws, but instead makes another tool available to our state and local partners.
If Sessions truly was concerned about state laws he would have left the directive in place because if LEOs were able to seize property without the use of the federal adoption, they would.
Modern civil forfeiture laws hold that property can be guilty of a crime, and therefore may be seized and forfeited even if that property’s owner never faces criminal charges. For two centuries, American civil forfeiture law was largely restrained to admiralty and customs enforcement. In the 1980s, Congress and the states turned to civil forfeiture to combat rampant drug distribution and organized crime. Civil forfeiture became a mainstream law enforcement tool and Congress and the states encouraged its use by allowing law enforcement agencies to retain the proceeds of successful property forfeitures.
Once authorities seize private property, the resulting civil proceeding differs dramatically from the customary standards of American criminal law.
First, the proceeding targets the property rather than the owner. Under forfeiture law at the federal level and in most states, the evidentiary standard requires “a preponderance of the evidence,” not the criminal law standard of “beyond a reasonable doubt.” Thus, prosecutors need prove only that it is more likely than not that the property is tied to crime and is thus forfeitable.
Second, the prosecution need not prove that an owner used the property to commit a crime or was willfully blind to its use, as is the case in ordinary criminal trials. In a forfeiture proceeding, the burden falls on the owner to disprove these facts by demonstrating that he neither knew of, nor consented to, the property’s illicit use.
Third, property owners in forfeiture cases, unlike defendants in criminal cases, have no guaranteed right to counsel. Consequently, if an owner cannot afford an attorney, he must navigate a tortuous legal landscape alone. Oftentimes, the cost of hiring a lawyer exceeds the value of the seized property or currency; hence, a large number of defendants opt not to retain counsel even if they can afford the expense.
The Institute for Justice notes three states, New Mexico, Nebraska, and North Carolina, have banned the practice. They also report that 24 states have reformed their laws that include 14 states that require a criminal conviction.
The Department of Justice’s Office of the Inspector General issued a report in March citing problems with the federal program:
We found that the Department and its investigative components do not use aggregate data to evaluate fully and oversee their seizure operations, or to determine whether seizures benefit criminal investigations or the extent to which they may pose potential risks to civil liberties. The Department and its components can determine how often seizure and forfeiture advance or relate to criminal investigations only through a manual, case-by-case review of component case management systems. Although the Department can aggregate data that can be used to identify associated risk factors and the outcomes of seizure activity, such as instances in which a portion or all of a seizure was returned to the owner as the result of a successful challenge, the Department’s investigative components do not actively use this type of aggregate data to evaluate and oversee seizure operations. We do not doubt the financial and deterrent effect seizures can have on criminal organizations and that intelligence collected during seizure operations can assist investigations. However, without evaluating data more systemically, it is impossible for the Department to determine (1) whether seizures benefit law enforcement efforts, such as advancing criminal investigations and deterring future criminal activity, or (2) the extent to which seizures may present potential risks to civil liberties.
Civil Asset Forfeiture itself is an end around the 5th Amendment’s protection of government seizing your property without the due process of law. If Sessions cared about liberty, he would work to abolish the practice instead of expanding it. The protections he mentions in his order do not go far enough. Asset forfeiture should only happen when a person is convicted of a crime if the state or federal law warrants it as a penalty. Anything beyond that is just state-sanctioned theft.
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