Law

Don't Revive Asset Seizure Program. End It.

Justice Thomas is among the critics suggesting that it's unconstitutional.

Bad idea, Mr. Attorney General.

Photographer: Spencer Platt/Getty Images

It’s ironic that Attorney General Jeff Sessions chose to announce the reinstatement of the Justice Department’s “equitable sharing” civil asset forfeiture program just as FreedomFest, the annual libertarian convention, was kicking off in Las Vegas. In 2016, many libertarians made the reluctant choice to embrace Donald Trump’s candidacy in the hope that he might roll back the Democratic Party’s regulatory excess. My suspicion is that Sessions’s announcement has caused them a lot of buyer’s remorse.

In a civil asset forfeiture, the government seizes property that it believes has been involved in illegal activity. Even if the person from whom the property was taken is never charged with a crime, it’s tough to get the property back. The equitable sharing program, which the Obama administration announced would be shut down (there’s some dispute over whether it ever fully was), allowed local law enforcement that turned such property over to the federal government to receive in return 80 percent of the value.

This is a really bad idea piled atop an even worse idea.

Let’s look at the problem. You own a house. The police claim it’s been used in illegal activity. A court lets the state take the house you thought was yours. To get your property back, you have to prove your innocence. If the judge isn’t persuaded, the state can sell your house at auction and keep the cash.. You might never be charged -- and the state can still keep your property. 1  (Unless you talk to the right reporter.)

Worse, the original seizure was based on the lowest-possible standard: a preponderance of the evidence. Ordinarily, to punish you for a crime, the state has to meet the burden of proof beyond a reasonable doubt. In a civil forfeiture proceeding, you’re being punished for a crime that you haven’t been shown to have committed.

Critics, not all of them libertarians, believe that civil asset forfeitures unconstitutionally take property without due process in violation of the Fifth Amendment; many also contend that the programs run afoul of the Fourth Amendment’s ban on unreasonable searches and seizures. In March the Supreme Court declined to hear a case called Leonard v. Texas, which would have provided the opportunity to clean up this mess. Justice Clarence Thomas, although he agreed for technical reasons with the decision not to grant review, issued a separate statement strongly suggesting that the programs were unconstitutional.

In the Leonard case, police in Texas stopped a car in an area known for drug sales and found a safe in the trunk. The officers obtained a search warrant and opened the safe. Inside they found the bill of sale for a house in Pennsylvania and $201,000 in cash. The state then began forfeiture proceedings on the ground that the money was drug-related. A judge agreed. The driver’s mother claimed that the cash was hers, proceeds of the sale of the house. She filed a petition to get the money back. The judge rejected her testimony.

Why has the Supreme Court allowed such programs to stand? For one thing, although politicians of both parties criticize civil forfeitures, law enforcement officials defend them as vital to reducing crime. In particular, civil forfeitures have long been described by defenders as key weapons of the war on drugs. On Wednesday, Deputy Attorney General Rod Rosenstein told reporters that reinstating the sharing program would help resolve the opioid crisis. You can color me skeptical that taking people’s property without convicting them of a crime will help reduce drug sales, but even if it’s true, the Constitution does not exist to make it easier for government to enforce the law.

The Supreme Court has long taken the position that civil forfeitures are not unconstitutional because the Framers were familiar with similar proceedings and chose not to disturb them. Thomas’s opinion is worth reading if only for the meticulousness with which he casts doubt on this claim. And if the history is wrong, writes Thomas, the court would be forced “to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation” -- that is, a higher burden of proof and other guarantees of due process. 2

Thomas drew alarming examples from a 2013 New Yorker story by Sarah Stillman:

“In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver. In another, they seized a black plant worker’s car and all his property (including cash he planned to use for dental work), jailed him for a night, forced him to sign away his property, and then released him on the side of the road without a phone or money. ... He was forced to walk to a Wal-Mart, where he borrowed a stranger’s phone to call his mother, who had to rent a car to pick him up.”

There are plenty more horrors in Stillman’s story -- and the abuses have continued since. But Sessions is not alone. Even the Obama administration quietly retained much of the program it had so publicly promised to abandon.

The idea of civil forfeiture probably sounded good when first proposed: People who know they will lose the fruit of their illegal activities will be less likely to commit crimes. But like so much that government does, the practice swiftly became entrenched, and swiftly became corrupt. 3  Between 2000 and 2013, the program Sessions is reviving returned some $4.7 billion to states that shared seized property with the federal government. No one knows how much the states have seized on their own. I argued in this space two years ago that policing should never be motivated by a local government’s need to raise cash. Although it’s hard to prove on the data, there is plenty of anecdotal evidence that that’s exactly the motive behind much of the seizure activity by strapped municipalities. 4

What’s the solution? Critics contend that if your property is seized because of supposed involvement in criminal activity, the Constitution requires at least clear and convincing evidence before your property is taken. A better reform would be to do away with civil asset seizures altogether. Forfeitures should be part of a criminal proceeding, imposed at sentencing. If the government wants to take your property, let it bring you to trial and prove beyond a reasonable doubt that you’ve committed a crime.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

  1. We don’t know the proportion of those not charged, in part because the civil forfeiture database maintained by the Department of Justice does not tell us whether the owner of the property was ever charged with or convicted of a crime. See page 7 of this report.

  2. Here’s an example of another useful guarantee: Because the hearing on your property is civil rather than criminal, nobody need advise you of your rights, and if you can’t afford an attorney, you’re out of luck. If you don’t understand what’s happening and therefore miss the hearing, you’re out of luck. If you speak English poorly, you’re out of luck. Such “administrative” takings, the data suggest, constitute close to nine out of 10 civil asset forfeitures.

  3. In a 2014 op-ed article, John Yoder and Brad Cates, former Justice Department lawyers who helped create the federal government’s asset forfeiture program, very publicly changed their minds.

  4. There’s also some reason to think that civil asset forfeitures suffer from a pattern of racial disproportion. Civil liberties groups agree. It’s hard to tunnel deeply enough into the data to see whether this is just noise. But the anecdotal evidence -- including what is recounted in Stillman’s article -- tends to support the notion. Certainly Justice Thomas believes that forfeitures “frequently target the poor and other groups least able to defend their interests.” These are the same groups, he points out, most likely to use cash rather than banks and credit cards, and whose assets are therefore easiest to seize.

To contact the author of this story:
Stephen L. Carter at scarter01@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net

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