Attorney General Jeff Sessions on Wednesday announced a new Department of Justice policy that increases the ability of state and local law enforcement to profit from civil forfeiture.
This is a reversal of an Obama-era policy implemented in 2015 that limited state and local law enforcement from transferring seized property to federal agencies in exchange for receiving up to 80 percent of the proceeds from the sale of the seized property.
Advocates say that Sessions’ reversal of DOJ policy will incentivize police to exploit the war on drugs as an excuse to permanently take cars, cash and other property from people without needing to convict or even charge the property owner with any criminal wrongdoing.
“President Trump’s attorney general has just handed state and local police greater ability to profit from the seizure of your cars, cash and other property without having to prove any criminal wrongdoing,” said Grant Smith, deputy director of national affairs for the Drug Policy Alliance. “The Attorney General is taking this country down a destructive and foolish path by escalating failed drug war tactics like civil forfeiture that disproportionately hurt people of color and individuals who can’t afford to fight the forfeiture,” said Smith.
Federal civil forfeiture law allows the government to seize and keep cash, cars, real estate, and any other property from persons without any proof of criminal wrongdoing. Civil forfeiture begins when a federal, state or local law enforcement agency seizes property during a traffic stop or other encounter and takes legal action against the property seized from its owner by alleging that the seized property is connected in some way to illegal drugs or other criminal activity.
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Property owners do not need to be charged or convicted of a crime in order for law enforcement to seize property; police need to only suspect the property of being involved in a drug law violation to seize and forfeit it. In the 1970s and 1980s, Congress expanded the use of civil forfeiture by federal, state and local law enforcement in the name of fighting the war on drugs. Numerous law enforcement agencies took advantage of these expanded policies to profit from the confiscation of cash and other property from people during roadside stops and other interactions.
In recent years, there has been strong bipartisan momentum for major civil forfeiture reform both in Congress and statehouses across the country. A growing number of states are reforming their forfeiture laws in the interest of protecting the rights of property owners and eliminating perverse incentives like those perpetuated by the Equitable Sharing Program.
In October, the most populous state in the nation, California, passed sweeping civil forfeiture reform that removed the financial incentives for law enforcement to seize property and pursue forfeitures with federal agencies in cases where one is arrested, charged or convicted of a crime. California’s reform effort added to a growing list of states ― including Florida, Maryland, Michigan, Minnesota, Montana, Nebraska, New Mexico, Tennessee, Virginia, Wyoming ― who have taken a stance against policing for profit.
In Congress, Senator Rand Paul (R-KY) in the Senate and Rep. Tim Walberg (R-MI) in the House have sponsored the Fifth Amendment Integrity Restoration (FAIR) Act (S.642/H.R. 1555). This strong bipartisan bill would undo the actions taken by Attorney General Sessions today by eliminating the Department of Justice’s Equitable Sharing Program that has incentivized state and local law enforcement to transfer cash and property in circumvention of state law.
Last year, the House Judiciary Committee passed a more incremental civil forfeiture reform bill. Groups that have supported comprehensive reform come from across the political spectrum.
“Congress needs to take up comprehensive civil forfeiture reform and reign in the excessive use of federal forfeiture by Sessions,” said Grant Smith, deputy director of national affairs for the Drug Policy Alliance. “A major overhaul of federal civil forfeiture laws by Congress has been long overdue to help innocent people get their wrongfully seized property back from the government,” said Smith.
In 2015, the Drug Policy Alliance released “Above the Law: An Investigation of Civil Asset Forfeiture Abuses in California,” a multi-year, comprehensive look at forfeiture abuses in California that reveals the troubling extent to which law enforcement agencies have utilized the adoptive forfeiture process in violation of state and federal law.