Should the government be able to take your money, car, or home without charging you with a crime?
That’s the question at the heart of the debate around the attorney general’s decision this week to expand the use of civil asset forfeiture.
For Attorney General Jeff Sessions, a “careful” plan to expand the program amounts to a common-sense approach to support law enforcement and weaken criminal enterprises amid an uptick in violent crime.
But for thousands of Americans caught up in a program that has seized some $29 billion in cash and assets in the past decade, strong-arming by law-enforcement agents has left them shaken and wondering what part of the United States Constitution supports the taking of personal property without a conviction, says attorney Dan Alban.
Democrats and civil libertarians have been up in arms about such seizures for years, saying the war-on-drugs-era tactic creates absurd incentives that have in many cases resulted in “policing for profit,” as the nonprofit Institute for Justice found in a 2015 report.
But for Mr. Sessions and the Trump administration, a more direct challenge may come from inside an already fractured GOP coalition, where opposition is growing on several fronts – and Congress is eyeing three bills to reform the program. Republican Sens. Mike Lee and Rand Paul, of Utah and Kentucky respectively, have both criticized the DOJ's new direction on civil asset forfeiture.
Civil asset forfeiture “reflects a cleavage that exists in the Republican Party between those focused more on law and order and those more concerned with civil liberties ... and it adds an extra element of conflict within the party at a time when the party already has its share of internal infighting,” says Mark Jones, a political scientist at Rice University in Houston.
Among the changes, announced Wednesday, the Justice Department rolled back Obama-era reforms designed to prevent the innocent from losing their property without a warrant or charge. Thirteen states have banned the practice, but the new federal guidelines mean that police in those states may be able to circumvent state law by turning to the federal government, who would then return 80 percent of the monies seized to the police department.
In that way, Sessions is testing the extent to which Republicans will weigh rock-ribbed conservative principles that equate property to citizenship with a return to a controversial drug war philosophy that conservative US Supreme Court Justice Clarence Thomas wrote earlier this year has “led to egregious and well-chronicled abuses.”
“Conservatives have always thought property rights were the most fundamental of human rights, because the property on which you stand and use to take care of yourself and your family is your independent basis for citizenship,” says Cal Jillson, a political scientist at Southern Methodist University in Dallas. “But you can imagine that some fiscal conservatives would say, ‘I don’t want to tax good people [to fund drug interdiction] so I’m going to tax the bad guys through this civil asset forfeiture process.’ ”
The civil asset forfeiture program has its roots in 17th-century maritime law, with pirates and smugglers as the original targets. But in 1984, as the war on drugs geared up, Congress began sharing proceeds from such seizures with law enforcement agencies. The intent was to hobble drug kingpins by seizing illegal profits, even if there wasn’t yet enough evidence for a warrant.
But “what history has taught is that the more you expand government power, the more of that power is used, and that’s what’s happened so far with asset forfeiture,” says former US Attorney Brett Tolman. “It can only become a bigger problem now.”
Take Philadelphia, where prosecutors seized more than 1,200 homes between 2002 and 2012, forcing many homeowners – some on fixed budgets – into complicated hearings to prove their innocence. A lawsuit by the homeowners received class-action status in April.
Such seizures exploded by 4,667 percent between 1986 and 2014, going from $93.7 million to $4.5 billion. In Texas, which leads the nation in the practice, an average of 14 percent of police budgets come from civil asset forfeitures, many of which are not tied to criminal convictions.
A sheriff weighs in
For sheriffs like A.J. Louderback in Jackson County in south Texas, it is an invaluable program.
Asset forfeiture, when done correctly, “weakens the criminal organizations when you take their money, and it strengthens our law enforcement when we can ... use it to further our effort against crime,” says Sheriff Louderback, legislative affairs director for the Sheriffs Association of Texas. “We should not be making it easier for them to facilitate crimes against our nation.”
Despite President Trump's recent public admonition of Sessions on recusing himself from the Russia probe, the two share a stalwart support for law enforcement.
“Jeff Sessions is a Southern conservative, so [he adheres to] the principles of small government and low taxes. But a robust police presence to protect the property owners and job creators from the takers and the criminal elements is a big part of his world view, not completely disassociated from Trump’s immigration program,” says Jillson.
To be sure, the new plan includes safeguards that will make it harder for police to justif the seizure of anything less than $10,000 and offer other transparencies aimed at curbing abuse.
But such assurances don’t go far enough for many conservatives. Groups as varied as the American Civil Liberties Union, the libertarian Institute for Justice, Americans for Prosperity, and the Goldwater Institute all urged Sessions in a letter to forego the practice.
“Even as forfeitures themselves have grown, the sort of drug warrior mentality behind it has shrunk, except for some in law enforcement who still think it’s a 1980s drug war, where everybody we suspect of being a drug dealer is a drug dealer, and it’s a bunch of bad guys versus us,” says Mr. Alban, an attorney for the Institute for Justice.
Sessions' reliance on 1980s strategies conflicts with findings of numerous investigations into how such policies play out in the real world.
In Sunrise, Fla., a small drug interdiction team paid themselves more than $1 million overtime directly through cash seized on the streets. In Tennessee, law enforcement primarily focused on drug mules leaving the state on westbound lanes in order to seize cash proceeds – rather than stopping drug-laden vehicles coming east into the state, an investigation by a local TV station found.
In 2015, New Mexico joined 12 states that have banned such forfeitures without a criminal conviction, underscoring bipartisan opposition around the country. There, a Las Cruces prosecutor made headlines when he urged police officers at a seminar to look for fancy houses and cars to seize, in order to pad local budgets.
“It feels like we’re back in the ’80s,” says Emily Kaltenbach, a senior director for the Drug Policy Alliance, who worked on the New Mexico reforms.
The Supreme Court has said, “individual freedom finds tangible expression in property rights.” But the high court has for the most part upheld civil asset forfeiture, though it has grown, given Justice Thomas's comment, suspicious of the practice more recently.
Congress is weighing several options. The most basic reform on the table would be to allow seizures only after conviction, and where proceeds would not go to local police departments, but into the US Treasury’s general fund.
Mr. Tolman believes the new policy could spur bipartisan justice reform in Washington.
There will be “political fallout and that fallout is Congress saying that we’re not just going to trust that this gets applied in a careful manner,” says Tolman, who is associated with Right on Crime, a Texas-based criminal justice initiative. “I think this is the attorney general overplaying a hand.”