No conviction, no problem? Critics concerned by Sessions' civil forfeiture directive

Attorney General Jeff Sessions addresses the summer meeting of the nation's district attorneys from around the country at the Hilton in Minneapolis, Minn., Monday, July, 17 2017. Sessions said the Justice Department will soon make it easier for local law enforcement to seize cash and property from crime suspects and reap the proceeds. (Jerry Holt/Star Tribune via AP)

Attorney General Jeff Sessions announced Wednesday that he is rolling back a Department of Justice directive that curtailed the use of a controversial civil asset forfeiture process designed to enable law enforcement to seize property they suspect is tied to criminal activity without securing a conviction.

Assets seized through forfeiture are often used by police to purchase equipment or to cover other operating expenses. President Donald Trump has said he sees no reason to restrict that practice.

The new directive signed by Sessions applies to federal adoption, a form of forfeiture halted by then-Attorney General Eric Holder in 2015. Under this practice, state and local law enforcement agencies could work with federal authorities to seize property and then receive up to 80 percent of the proceeds from it, even if their state laws would prohibit it.

Kurt Altman, a former federal prosecutor and signatory for Right on Crime, a conservative criminal justice reform initiative, is skeptical of Sessions’ move the reinstate the program. He expects most law enforcement agencies want to use it responsibly, though, if for no other reason than that they do not want to lose it again.

“I have no doubt that the Department of Justice and Attorney General Sessions have the intention to do the right thing here,” he said.

The new directive imposes several safeguards on the practice, though critics say they do not go nearly far enough to prevent abuses.

Police departments will now be required to provide federal officials with more information about probable cause to justify a seizure. The Justice Department will also have less time to decide whether to get involved and to notify property owners of their rights.

The new rules are also intended to limit seizures of less than $10,000 in the absence of a warrant, an arrest, the presence of contraband, or a confession of a crime. In such cases, the approval of a federal prosecutor will now be required in order to proceed.

Law enforcement agencies that want to participate in the equitable sharing program will now be required to provide officers with enhanced training on asset forfeiture laws as well.

“We’re very comfortable with the procedures, practices, and expectations that the Department of Justice has put into place,” said Jonathan Thompson, executive director of the National Sheriffs Association.

According to Dan Alban, an attorney with the Institute for Justice, the rules amount to little more than a promise to be more careful, and the restrictions on seizures under $10,000 can be easily overridden.

“These are barely safeguards at all,” he said. “I question the extent to which they’re going to safeguard anyone from anything or prevent a single forfeiture from being adopted.”

“They’re not sufficient at all,” said Grant Smith, deputy director of national affairs for the Drug Policy Alliance. “They primarily rely on prosecutors to adhere to the safeguards, and the whole premise of forfeiture is to reap the proceeds.”

People whose property is seized still are not guaranteed a day in court and police still do not need to actually prove to anyone that the property was used in a crime.

“We’re not talking here about a level of accountability where we can have assurance that business as usual won’t continue,” he said.

Opposition to civil asset forfeiture is one of the rare issues that unite many on the right and the left.

Criminal justice reform advocates and libertarians have sought to prevent law enforcement from seizing personal property without a criminal conviction and to provide those whose property is seized with due process protections.

“People are really put in a precarious position and their rights to their property is not well protected,” Alban said.

Many state governments have joined that fight. New Mexico has abolished civil forfeiture altogether and about a half dozen other states now require a criminal conviction in most or all cases. Overall, nearly half of states have instituted standards stricter than just a preponderance of evidence.

What concerns reform advocates, however, is that the federal adoption program allows state and local law enforcement to circumvent those laws.

According to Alban, most forfeitures involve property worth less than $9,000, and it could involve $5,000 to 10,000 in legal fees to win them back. People who are successful can sometimes get their attorney fees repaid, but the risk is high.

“For the vast majority of forfeitures, it doesn’t even make financial sense to hire an attorney to contest them,” he said.

Smith said these practices disproportionately target communities of color and lower income drivers who face an uphill battle if they want to fight to get their assets back.

“In a lot of ways it’s theft…. It’s taking property from innocent people essentially,” he said.

Several Republican members of Congress blasted the new policy on Wednesday.

“Instead of revising forfeiture practices in a manner to better protect Americans’ due process rights, the DOJ seems determined to lose in court before it changes its policies for the better,” Sen. Mike Lee, R-Utah, said in a statement.

Rep. Darrell Issa, R-Calif., welcomed the new safeguards being applied to the program, but he still expressed concern about Sessions’ decision to revive it.

"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," he said.

Sessions’ directive does have its supporters. His promise to address the issue during an address to the National District Attorneys Association on Monday was greeted with applause, and he delivered his statement Wednesday flanked by representatives of several law enforcement groups.

“This is a vital tool for law enforcement, especially for those state and local agencies who use the equitable sharing program to allow them to reinvest resources to fight crime in their communities,” Chuck Canterbury, national president of the Fraternal Order of Police, said in a statement.

“By adopting asset forfeiture cases, the Department of Justice provides support and assistance that makes an enormous difference for local agencies,” said Chief J. Thomas Manger of the Montgomery County, Maryland Police Department and president of the Major Cities Chiefs Association. “This program will inflict a decisive blow to the cartels by taking from them the profits that drive their criminal enterprises.”

Thompson said civil asset forfeiture is a valuable tool for law enforcement that strikes at the heart of criminal enterprises and enables police to put more resources into fighting crime.

“The criminals are taking money out of the communities and what we’re saying is that money needs to come back to the communities,” he said.

Supreme Court Justice Clarence Thomas recently questioned the constitutional basis for civil asset forfeiture in a written statement on a case that the Court declined to hear for procedural reasons.

“I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice,” he wrote.

Civil forfeiture was born from English law and was used against bootleggers during the Prohibition era, but it became much more prevalent after changes in federal law in 1984 as part of the war on drugs.

“Whether the Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail,” Thomas wrote.

Most critics take no issue with police seizing property from convicted criminals or assets proven to be the product of criminal activity.

“Once these people are determined to be criminals, civil forfeiture is fine,” Altman said.

They question why authorities should be able to take property from U.S. citizens without first proving they committed a crime.

“The only instance where I could see that might apply is where you have property in the United States that belongs to a foreign national who can’t claim ownership,” Smith said.

Thompson maintained that cases where innocent people lose property and are not able to get it back through the legal system are rarer than critics suggest. There is a process for challenging seizures, and he pointed to the new rules that mandate more training and tighten the timeline for law enforcement to decide whether to take property.

“There’s a very small, very small percentage of instances where individuals are legitimate holders of gained cash resources,” he said. “It’s my contention until somebody can show me otherwise that the ill-gotten gains that are retrieved vastly outweigh those instances.”

In instances where there is doubt, he called for transparency and accountability.

“We’ve been arguing very strongly that we want due process…. We need to show the public that you’re doing it the right way,” he said.

However, the Institute for Justice found that just 13 percent of Department of Justice forfeitures from 1997 to 2013 were done through criminal forfeiture, which requires a conviction. The rest were civil.

“If it were the case that the vast majority of these involved actual criminals, the numbers would be reversed,” Alban said.

He also pointed to reporting by a Nashville news station that found a police task force operating on a highway there made 10 times more vehicle stops in the westbound lane where cars were more likely to carry cash than the eastbound lanes where they were more likely to be carrying drugs from Mexico.

“Never in a million years would you do that if you didn’t get to keep the proceeds from the seizures,” he alleged.

Although law enforcement agencies insist the forfeiture power assists them in preventing crime, reform advocates see little to no evidence that enabling police to take property without proving a crime makes anyone safer.

“If anything, it really contributes to distrust between law enforcement and the community,” Smith said.

Alban posited that it is hard to deter crime with a program that does not actually require that the people targeted be criminals.

“It’s just sort of a general deterrent to having property in the United States, I guess,” he said.

Thompson rejected the notion that law enforcement agencies have an incentive to abuse and overuse forfeitures for profit. Pointing to a drop in participation in federal task forces after the program was stopped in 2015 and local agencies were no longer able to recoup their expenses with seized assets, he said prohibiting forfeiture is more of a “reverse incentive.”

“It became too expensive and too costly to get involved in a task force,” he said.

Police officers will do their jobs every day regardless of whether they are getting money back from seizures, according to Thompson, but criminals will be emboldened if they are allowed to keep proceeds of their crimes.

“You’re incentivizing the bad guys by not seizing their property,” he added.

Alban emphasized that criticism of civil forfeiture is not intended to besmirch law enforcement or suggest police officers are corrupt, but he believes it is just basic economics that people respond to incentives.

“It’s not about cops being bad people,” he said. “Anyone would respond to these incentives if these incentives were present…. It’s not an attack on the integrity of police. It’s an attack on setting up incentives that encourage bad behavior.”

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