Government takes people’s stuff without a conviction or even charges. That’s wrong

You can say this about U.S. Attorney General Jeff Sessions: He doesn’t mind swimming against the tide. That can be an admirable trait, depending on the issue.

Increasing the use of civil asset forfeiture (CAF) is the wrong issue. Sessions announced this week that he is undoing the modest CAF reforms put in place by the Justice Department in 2015. He also announced plans to increase the number of CAFs that U.S. Attorneys and his department pursue.

CAF as it is currently practiced is wrong. The impulse may be a good one – to take away the monetary gains of criminal enterprises.

But in practice, seizing assets without a conviction – or in some cases, even without charges or a warrant – is constitutionally problematic to say the least. It levels a punishment based on presumed guilt, which is not how our justice system is supposed to work.

The Institute for Justice, a group I respect greatly, said in a release:

“Civil forfeiture is inherently abusive. No one should lose his or her property without being first convicted of a crime, let alone charged with one…The Department of Justice’s supposed safeguards amount to little more than window dressing of an otherwise outrageous abuse of power.”

Sessions’ position stands athwart a growing consensus among Democrats and Republicans, and among groups on the left and right, that CAF is being abused. To say that issues on which the two sides are finding common ground these days are few and far between is a vast understatement. That makes Sessions’ decision all the more disheartening.

Big problems with CAF in the real world
The idea of seizing drug gangs’ funds is appealing, and that’s what Sessions chose to focus on in his announcement. But the bloom comes off the rose pretty quickly when you start digging into the abuses and perverse incentives. Consider a few:

1) Eh Wah, a Burmese Christian touring the U.S. with a band to raise funds for projects back home, was pulled over with $53,000 in cash in his car. Eh Wah’s car contained no drugs or weapons, but did contain CDs of Christian music the band sells and checks written to the causes, including a Thai orphanage, that he was raising money for.

Police in Oklahoma seized the money anyway, based on nothing more than the vague suspicion that he might be a drug dealer. The money was returned and charges dropped only after the case received public attention.

2) Some jurisdictions are focusing on the money more than the contraband they’re supposed to stop. An analysis of Oklahoma traffic stops that ended with assets being seized found more attention on return trips – where there is likely to be money – than the trips where drugs are being trafficked. From the Washington Post’s story on Eh Wah:

“In looking at the data of forfeitures along Interstate 40, which runs east to west through the state, ‘we definitely see a huge disparity of folks on those interstates focusing on the westbound travel, which tends to be the money here in Oklahoma,’ [the ACLU’s Brady] Henderson said.

“In essence, he says, authorities are letting the drugs get to their destinations and be sold and used so that police can grab the money from the drug sales on the return trip. This mirrors the behavior that watchdog groups and news organizations have observed in other states, such as Tennessee.

“‘If the whole notion is that drugs are destructive, that they hurt people, why are we letting the drugs hurt people?’ he asked. ‘We are deliberately letting the drugs get to their final destination, get sold, get used, and in some cases letting someone die of an overdose.’”

3) The Dept. of Justice has re-started the controversial Equitable Sharing Program. Some states have tightened their CAF laws, but local law enforcement agencies can get around that by turning over seized assets to the Dept. of Justice. The feds then send about 80% of the funds back to the local agency. This is a way to skirt the tighter rules that many states have decided are necessary to protect against abuses.

4) When police departments get to keep the assets they seize, it creates a perverse incentive for them to increase CAFs and to use CAFs in questionable cases. That’s a problem in fact and an appearance problem.

It’s made all the worse when the cases don’t end in successful prosecutions. A Dept. of Justice Inspector General’s report on CAF notes, “When seizure and administrative forfeitures do not ultimately advance an investigation or prosecution, law enforcement creates the appearance, and risks the reality, that it is more interested in seizing and forfeiting cash than advancing an investigation or prosecution.”

The Institute for Justice has many more examples of CAF abuses if you’d like to learn more.

In his announcement, Sessions included promises to put measures in place that will prevent the worst CAF abuses. They’re only that: Promises. It’s a “just trust us” argument – that’s not good enough. As state Attorney General, I was a law-and-order guy. CAF is heavy on order but light on law, especially constitutional law.

Justice Clarence Thomas has signaled that he’d be open to the Supreme Court taking on related cases with the aim of striking CAF down. Time might be running out on this controversial practice. If so, the Justice Department’s new CAF kick won’t last long.
-Rob McKenna

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Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.