Attorney General Jeff Sessions and Donald Trump’s Justice Department revived a federal program on Wednesday (July 19) that gives state and local law enforcement more power to seize property from people who haven’t been charged, let alone convicted, of a crime. This move reverses an Obama administration rule prompted by past abuse by police.
The policy — known as “civil asset forfeiture” — became widespread as part of the drug crackdown in the 1980s, after Congress passed a law in 1984 that allowed the Department of Justice to keep the property it seized. At the time, forfeiture was billed as a way to undermine the resources of large criminal enterprises, but law enforcement saw it as a way to underwrite their budgets, and have overwhelmingly gone after people without the means to challenge the seizures in court.
Two years ago, then-Attorney General Eric H. Holder Jr. barred state and local police from using federal law to seize cash and other property without criminal charges or warrants. Since 2008, thousands of police agencies had made more than 55,000 seizures of cash and property worth $3 billion under a Justice Department civil asset forfeiture program, which allowed local and state police to make seizures and then share the proceeds with federal agencies.
A Washington Post investigation in 2014 found that state and local police had seized almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001. The Post series revealed that police routinely stopped drivers for minor traffic infractions, pressed them to agree to searches without warrants and seized large amounts of cash when there was no evidence of wrongdoing.
Police then spent the proceeds from the seizure with little oversight, according to the Post investigation. In some cases, the police bought luxury cars, high-powered weapons and armored cars.
At a meeting with county sheriffs on Feb. 7, President Trump made clear to law enforcement officials that he is a strong supporter of the civil asset forfeiture program and told the Justice Department to rescind the Obama administration restrictions.
The new policy from Attorney General Jeff Sessions authorizes federal “adoption” of assets seized by state and local police when the conduct that led to the seizures violates federal law.
Civil liberties organizations have called asset forfeiture “legalized theft,” and as the practice has become more widespread, it has become deeply unpopular. According to a poll last year by the Cato Institute, 84 percent of Americans oppose property seizures from people not convicted of a crime. Most states have passed laws restricting the practice, or banning it outright.
Deputy Attorney General Rod J. Rosenstein said that the department is adding safeguards to ensure that police have sufficient evidence of criminal activity when property is seized. Property owners will receive notice of their rights within 45 days, which is twice as quickly as required by current law. Law enforcement agencies will be required to provide officers with more training on asset forfeiture laws, he said.
“The goal here is to empower our police and prosecutors with this important tool that can be used to combat crime, particularly drug abuse,” Rosenstein said at a news briefing. “This is going to enable us to work with local police and our prosecutors to make sure that when assets are lawfully seized that they’re not returned to criminals when there’s a valid basis for them to be forfeited.”
Holder tweeted that Sessions’s policy was “another extremist action” and said the Obama administration policy was “a reform that was supported by conservatives and progressives, Republicans and Democrats.”
The move was even opposed by members of Trump’s own party. Republican Sen. Rand Paul, R-Ky., said the practice violates the Fifth Amendment, and Sen. Mike Lee, R-Utah, released a statement saying “the DOJ seems determined to lose in court before it changes its policies for the better.”
Rep. Darrell Issa (R-Calif.) called Sessions’s policy “troubling” and said it would “expand a loophole that’s become a central point of contention nationwide.”
“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,” Issa said in a statement.
Kanya Bennett, legislative counsel for the American Civil Liberties Union, called the action “outrageous.”
“We are talking about people who have not been convicted of a crime and are often not given a day in court to reclaim their possessions,” Bennett said. “Civil asset forfeiture is tantamount to policing for profit, generating millions of dollars annually that the agencies get to keep.”
“These purported safeguards amount to little more than self-policing, and we all know how well that works,” said Bennett. “We can’t trust the very law enforcement agencies that stand to profit from a forfeiture to police themselves.”
The guidelines list certain conditions that must be met to allow adoptive forfeitures for cash amounts less than $10,000. One of the conditions is that police are allowed to make adoptive forfeitures as long as it is alongside an arrest, something that Bennett says is deeply problematic, and may incentivize more arrests.
“At least one of these safeguards will promote more entanglement with the criminal justice system because it suggests all cash seizures under $10k are legitimate if they occur incident to arrest.”
“The real safeguard is the one that Attorney General Sessions is reversing — that would have prevented local law enforcement from circumventing more restrictive state forfeiture laws that are trying to protect against civil liberty violations.”