A commitment to constitutional due process is a bedrock of American civil society, and President Trump and Attorney General Jeff Sessions’ efforts to increase federal use of civil asset forfeiture is deeply ill-considered.
“[W]e hope to issue this week a new directive on asset forfeiture—especially for drug traffickers,” Sessions said. “With care and professionalism, we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their crime. Adoptive forfeitures are appropriate as is sharing with our partners.”
The Justice Department did not immediately respond to a request for comment and for more information about the directive.
Asset forfeiture became a prized hammer in law enforcement’s tool chest in the 1980s, when the government was struggling to combat organized drug cartels. Law enforcement groups say the laws allow them to disrupt drug trafficking operations by targeting their proceeds—cars, cash, and guns.
However, the practice has exploded since then, and civil liberties groups and political advocacy organizations, both liberal and conservative, say the perverse profit incentives and lack of due process for property owners lead to far more average citizens having their property seized than cartel bosses.
The Justice Department plays a huge role in asset forfeiture through its Equitable Sharing Program, which allows state and local police to have their forfeiture cases “adopted” by the federal government. The feds take over the case, and the seized money is put into the equitable sharing pool. In return, the department gets up to 80 percent of those funds back. The equitable sharing program distributes hundreds of millions of dollars a year to police departments around the country.
The Fifth Amendment to the Constitution states that citizens shall not “be deprived of life, liberty, or property without due process of law,” while the Fourteenth Amendment states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” making official the incorporation of federal due process rights at the state level. (These rights were already largely observed for free citizens under common law, with the Fourteenth Amendment explicitly extending them for freed slaves.)
There have been numerous documented abuses of civil asset forfeiture laws, with people having money and property seized despite having committed no crime. The Supreme Court has recently started limiting the scope of civil asset forfeiture, with Justice Clarence Thomas being especially critical:
This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses. According to one nationally publicized report, for example, police in the town of Tenaha, Texas, regularly seized the property of out-of-town drivers passing through and collaborated with the district attorney to coerce them into signing waivers of their property rights.
In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver. In another, they seized a black plant worker’s car and all his property (including cash he planned to use for dental work), jailed him for a night, forced him to sign away his property, and then released him on the side of the road without a phone or money. He was forced to walk to a Wal-Mart, where he borrowed a stranger’s phone to call his mother, who had to rent a car to pick him up.
These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.
And Connecticut just passed a law making it clear that civil asset forfeiture can only occur after conviction of a crime.
Texas state senator Konni Burton (R-Colleyville), who has been critical of previous Trump statements on civil forfeiture, had this to say:
I am extremely disappointed in the decision by Attorney General Jeff Sessions to rescind certain policies implemented by his predecessors which limited the federal scope and use of civil asset forfeiture. While the A.G. has added some new safeguards against abuse, he is once again allowing law enforcement to potentially circumvent stricter state forfeiture laws and utilize weaker federal laws at the expense of the rights of the individual. Sessions’ announcement only underscores the dire necessity of making real change at the state and federal level by passing meaningful protections for the people into law, and not simply relying on prosecutorial discretion and rule-making, which changes from one administration to the next. Let me be clear: there is no bigger private property rights issue in America today than our current, egregious system of civil asset forfeiture. We must pass real reforms through the legislative process here in Texas and at the federal level as well. As we’ve seen today, the peoples’ property is not truly secure until we do.
If President Trump and Attorney General Sessions were planning to increase civil asset forfeiture only for convicted felons and only for the proceeds from their crimes, I’d have no problem. Alas, nothing in their statements indicates adherence to such constraints.
Like free speech and civilian firearms ownership, private property rights and substantive due process are both fundamental American constitutional rights, and “But drug lords!” is a pretty lousy argument for suspending those rights.