The Department of Justice reinstated a widely criticized civil asset forfeiture program.
On July 19, the DOJ under Attorney General Jeff Sessions announced the resumption of federally adopted forfeitures, whereby local and state law enforcement to use federal law to seize cash and other property from people suspected of crimes, even if they are not charged.
Eric Holder, Attorney General under President Barack Obama, eliminated the practice in January, 2015 in the face of mounting criticism of perceived abuses, particularly in regard to small cash seizures.
In the 12 months prior to that action, state and local law enforcement seized assets worth $65 million with federally adopted forfeitures. Guidelines grant the federal government at least a 20 percent cut of these proceeds.
That amounts to a drop in a total forfeiture bucket of many billions of dollars. However, the program is widely criticized for allowing law enforcement to bypass state guidelines and seize assets under much looser federal law.
Deputy Attorney General Rod J. Rosenstein defended the program to reporters.
“This is not about taking assets from innocent people, It’s about taking assets that are the proceeds of, or the tools of, criminal activity, and primarily drug dealing,” Rosenstein said.
Matt C. Pinsker, a criminal defense attorney and professor at Virginia Commonwealth University, puts little stock in Rosenstein’s assurances.
“No one objects to criminals losing their ill-gotten gains from their criminal activity. The problem is that for civil forfeiture, there is no requirement that a person is charged with a crime, let alone convicted.”
Pinsker explained that prosecutors need only show it is more likely than not that the asset being seized was involved in, contributed to or acquired through criminal activity.
“It is troubling that there is such a low burden of proof for the government to seize people's assets, especially when people may not even ever be charged,” Pinsker said.
Like many others, he warns that forfeiture laws can have a deleterious effect on the motivations of law enforcement officers.
“Another issue with civil forfeiture is that the assets being seized go to the government. In many places, the police who seize it get them. This is troubling because the police have an incentive to take from the citizenry,” Pinsker said.
The Institute for Justice, the American Civil Liberties Union, and some twenty other advocacy groups quickly let congressional judiciary committee chairmen know where they stood on civil asset forfeiture. In an open letter to Sen. Chuck Grassley, R-IA and Rep. Bob Goodlatte, R-VA, the groups highlighted widespread concern over civil forfeiture.
“Both the Republican and Democratic Party platforms in 2016 called for civil forfeiture reform,” the letter said. “This groundswell of support for reform has led 24 states, in the last three years, to pass new laws rolling back civil forfeiture.”
If a challenge to civil forfeiture were to reach the Supreme Court, it might have the support of at least one Supreme Court Justice. One such case, Leonard v. Texas, was recently turned down for a hearing at the Supreme Court on procedural grounds. In his opinion, Justice Clarence Thomas expressed his worry that these laws may disproportionately affect the poor.
Thomas wrote, “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.”