With a promise to use “care and professionalism,” Attorney General Jeff Sessions has moved to expand a scandal-plagued program of asset forfeiture that allows law enforcement officials to seize money and goods from individuals suspected of crimes, in many cases without a criminal conviction or even a charge. While it is nice to pledge care and professionalism, aspects of this program have proved rife with abuse, and it must be reformed.
The logical foundation of asset forfeiture is recovering the proceeds of criminal activity, such as drug deals. “No criminal should be allowed to keep the proceeds of their crime,” Mr. Sessions declared in a speech Monday in Minneapolis to the National District Attorneys Association. Again, it is hard to argue with the principle. But in reality, as a Post investigation showed in 2014, asset forfeiture has turned out to be an opportunity for police to seize cash and valuables from drivers stopped for minor infractions, and it often can be extremely difficult for the innocent to recover their property. The bounty is often parceled out to law enforcement agencies, creating a perverse profit motive.
In 2015, the Justice Department under President Barack Obama announced curtailment of a kind of forfeiture that allowed local police to share part of their proceeds with federal authorities. This was known as “adoptive” forfeiture, under which state and local authorities would get the seizure cases processed, or “adopted,” under more permissive federal statues, rather than stricter state laws. The 2015 order all but ended adoptive forfeiture. Now, Mr. Sessions is turning the spigot back on, as a Justice Department policy announcement on Wednesday made clear.
The Post report in 2014 revealed onerous seizures from the innocent. In one case, a 40-year-old Hispanic carpenter from New Jersey was stopped on Interstate 95 in Virginia for having tinted windows. Police said he appeared nervous and consented to a search. They took $18,000 that he said was meant to buy a used car. He had to hire a lawyer to get his money back.
While asset forfeiture is justified in huge drug busts, its abuse in highway arrests and in grabbing small sums from people has gone too far. Mr. Sessions declared in his address to the Minneapolis group: “Helping you do your jobs, helping the police get better, and celebrating the noble, honorable, essential and challenging work you do will always be a top priority of mine.” Wouldn’t it be in service of these goals to curb wrongful asset forfeitures and put in place strong protections against further exploitation by police of innocent Americans?
The Justice Department is promising to implement such protections, and Mr. Sessions said he would instruct department officials to use an “abundance of caution” for seizures involving vehicles and residences, where many mistakes have occurred. That’s not enough. Congress ought to consider legislation introduced by Rep. Darrell Issa (R-Calif.) with bipartisan support that would increase the government’s burden of proof before seizing assets.
Opinion from Washington Post
Sessions greenlights police to seize cash, property from people suspected of crimes but not charged
The Justice Department announced a new federal policy Wednesday to help state and local police take cash and property from people suspected of a crime, even without a criminal charge, reversing an Obama administration rule prompted by past abuse by police.
Deputy Attorney General Rod J. Rosenstein said the Justice Department will include more safeguards to prevent the kind of problems that have been documented in the past. Police departments will be required to provide details to the Justice Department about probable cause for seizures, and federal officials will have to more quickly inform property owners about their rights and the status of the seizures.
“The goal here is to empower our police and prosecutors with this important tool that can be used to combat crime, particularly drug abuse,” Rosenstein said at a news briefing. “This is going to enable us to work with local police and our prosecutors to make sure that when assets are lawfully seized that they’re not returned to criminals when there’s a valid basis for them to be forfeited.”
Two years ago, then-Attorney General Eric H. Holder Jr. barred state and local police from using federal law to seize cash and other property without criminal charges or warrants. Since 2008, thousands of police agencies had made more than 55,000 seizures of cash and property worth $3 billion under a Justice Department civil asset forfeiture program, which allowed local and state police to make seizures and then share the proceeds with federal agencies.
A Washington Post investigation in 2014 found that state and local police had seized almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001. The Post series revealed that police routinely stopped drivers for minor traffic infractions, pressed them to agree to searches without warrants and seized large amounts of cash when there was no evidence of wrongdoing.
Police then spent the proceeds from the seizure with little oversight, according to the Post investigation. In some cases, the police bought luxury cars, high-powered weapons and armored cars.
“You’re never going to eliminate allegations of abuses,” Rosenstein said, “never going to eliminate mistakes 100 percent. But I think this new policy is going to position us very well to make sure there are very few credible allegations of abuse, and where there are we’re going to make it a priority to follow up.”
The new policy from Attorney General Jeff Sessions authorizes federal “adoption” of assets seized by state and local police when the conduct that led to the seizures violates federal law. Rosenstein said that the department is adding safeguards to ensure that police have sufficient evidence of criminal activity when property is seized. Property owners will receive notice of their rights within 45 days, which is twice as quickly as required by current law. Law enforcement agencies will be required to provide officers with more training on asset forfeiture laws, he said.
State and local law enforcement officials supported the change, but Democratic and Republican lawmakers were skeptical.
Rep. Darrell Issa (R-Calif.) called Sessions’s policy “troubling” and said it would “expand a loophole that’s become a central point of contention nationwide.”
“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,” Issa said in a statement.
Holder tweeted that Sessions’s policy was “another extremist action” and said the Obama administration policy was “a reform that was supported by conservatives and progressives, Republicans and Democrats.”
Kanya Bennett, legislative counsel for the American Civil Liberties Union, called the action “outrageous.”
“We are talking about people who have not been convicted of a crime and are often not given a day in court to reclaim their possessions,” Bennett said. “Civil asset forfeiture is tantamount to policing for profit, generating millions of dollars annually that the agencies get to keep.”
At a meeting with county sheriffs on Feb. 7, President Trump made clear to law enforcement officials that he is a strong supporter of the civil asset forfeiture program and told the Justice Department to rescind the Obama administration restrictions.
On Wednesday, Sessions defended the reversal at a meeting with representatives from the Fraternal Order of Police, the National Sheriffs’ Association, the Major Cities Chiefs Association and other law enforcement officials who back the new policy.
“Civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains and prevent new crimes from being committed, and it weakens the criminals and the cartels,” Sessions said.
Earlier this week, Sessions told the National District Attorneys Association that “no criminal should be allowed to keep the proceeds of their crime.”
But the ACLU’s Bennett said, “The problem is that we are not talking about criminals.”
“We are talking about Americans who have had their homes, cars, money and other property taken through civil forfeiture, which requires only mere suspicion that the property is connected to a crime,” she said.