Attorney General Jeff Sessions announced Wednesday that the Department of Justice will revive a program that allows local police to assist federal law enforcement with civil asset forfeiture, even in states where the practice is strictly circumscribed.
Civil forfeiture allows federal officials to seize property — money, cars, and even homes — that are connected to illegal activity, even in the absence of an indictment or criminal conviction. Sessions’ new policy relaxes restrictions governing asset profit-sharing between federal and local police agencies.
Sessions acknowledged that practice is highly controversial, but insisted that a “careful and responsible” program is essential for effective law enforcement.
“[I]f we operate this program in a careful and responsible way, something I believe the American people expect and deserve with a program such as this, the Department’s federal asset forfeiture program will be an effective tool, while at the same time protecting the rights of property owners,” he said.
Though 24 states have laws restricting asset forfeiture, local law enforcement routinely circumvent these measures by turning over seized assets to federal authorities, a practice known as “adoptive forfeiture.” Under this policy, local police departments can retain as much as 80 percent of their seized assets, if they share a percentage of their forfeiture haul with federal agencies.
Former Attorney General Eric Holder reined in “adoptions” during his tenure at the Justice Department, though he made exceptions for firearms and child pornography.
The move is somewhat unusual for Sessions, an avowed champion of federalism during his career in the Senate. By reinstating a robust adoptive forfeiture program, the Justice Department is essentially leveraging a policy to supersede state laws.
GOP Sen. Mike Lee of Utah, a Sessions ally and staunch critic of forfeiture, predicted the courts would rein in the federal government’s expansive seizure policies.
“Back in May I encouraged the Department of Justice to review its policies on civil asset forfeiture in light of increasing indications from the Supreme Court that this practice is constitutionally suspect,” Lee said in a statement. “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.”
Lee is referring to two opinions from the Supreme Court that suggest the justices are increasingly uncomfortable with the modern forfeiture regime. Justice Sonia Sotomayor wrote an opinion for a unanimous Court curtailing asset forfeiture in conspiracy prosecutions in June, while Justice Clarence Thomas expressed deep skepticism at the continued legality of forfeiture in a March statement respecting the Court’s denial of an appeal in a case called Leonard v. Texas.
Asset forfeiture is a financial boon to federal law enforcement, according to government investigators. A March report from DOJ’s Inspector General found the FBI, DEA, and ATF seized almost $1 billion in assets between 2007 and 2014.
As such, it often prompts litigation from individuals who claim their property has been unlawfully seized. Darpana Sheth, an Institute for Justice attorney who represents forfeiture plaintiffs, denounced the development as a setback for reform.
“Today’s announcement is a disheartening setback in the fight to protect Americans’ private property rights,” she said. “Ordinary Americans see that civil forfeiture is unconstitutional, and 24 states have taken steps to roll back civil forfeiture laws.”
“The Attorney General’s plan to increase forfeitures is jarringly out of step with those positive developments,” she added.
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