Attorney General, Jeff Sessions has just announced his intention to ramp up the government’s use of civil asset forfeiture.
Speaking before the National District Attorneys Association on Monday (July 17th, 2017), Sessions said:
“(W)e hope to issue this week a new directive on asset forfeiture, especially for drug traffickers.”
“No criminal should be allowed to keep the proceeds of their crime.”
In case you need a quick reminder, civil asset forfeiture (CAF) is (from Wikipedia):
Civil forfeiture in the United States, also called civil asset forfeiture or civil judicial forfeiture or occasionally civil seizure, is a controversial legal process in which law enforcement officers take assets from persons suspected of involvement with crime or illegal activity without necessarily charging the owners with wrongdoing. While civil procedure, as opposed to criminal procedure, generally involves a dispute between two private citizens, civil forfeiture involves a dispute between law enforcement and property such as a pile of cash or a house or a boat, such that the thing is suspected of being involved in a crime. To get back the seized property, owners must prove it was not involved in criminal activity. Sometimes it can mean a threat to seize property as well as the act of seizure itself.
I bolded the interesting part of that definition – that “civil forfeiture involves a dispute between law enforcement and property such as a pile of cash or a house or a boat, such that the thing is suspected of being involved in a crime.”
In a CAF case, law enforcement accuses the property of wrongdoing. The burden of disproving the wrongdoing then falls on the owner of the property. This is the opposite of the presumption of innocence (“innocent until proven guilty”) that we all believe to be the law of the land.
While CAF is claimed to be used to target illegal activity – particularly drug trafficking – there have been many recent cases of Americans having their cash and property seized without the government proving any crime.
Attempting to retrieve the seized property can be expensive and time-consuming – often costing more than the value of the seized assets.
Session and the Trump Administration intend to increase asset seizures by using something called “adoptive forfeiture” which allows federal law enforcement to step in when state law prohibits such action.
Since several states have more restrictive CAF laws than the federal government (and 13 states require a person be convicted of a crime before their assets can be seized) utilizing adoptive forfeiture can result in seizing assets that would otherwise not be allowed.
As Sessions said in his remarks to the District Attorneys:
“We hope to issue this week a new directive on asset forfeiture—especially for drug traffickers.” “With care and professionalism, we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their crime. Adoptive forfeitures are appropriate as is sharing with our partners.”
Civil asset forfeiture has become a significant source of revenue for state and federal law enforcement. A 2014 Washington Post investigation found:
- There have been 61,998 cash seizures made on highways and elsewhere since 9/11 without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion. State and local authorities kept more than $1.7 billion of that while Justice, Homeland Security and other federal agencies received $800 million. Half of the seizures were below $8,800.
- Only a sixth of the seizures were legally challenged, in part because of the costs of legal action against the government. But in 41 percent of cases — 4,455 — where there was a challenge, the government agreed to return money. The appeals process took more than a year in 40 percent of those cases and often required owners of the cash to sign agreements not to sue police over the seizures.
- Hundreds of state and local departments and drug task forces appear to rely on seized cash, despite a federal ban on the money to pay salaries or otherwise support budgets. The Post found that 298 departments and 210 task forces have seized the equivalent of 20 percent or more of their annual budgets since 2008.
As our local, state and federal governments get more desperate for the money they need to finance their ever-increasing budgets, we can likely expect them to get even more aggressive and creative in their efforts to find ways to raise cash.
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