George Will has one of his occasionally intelligent columns, this time about Jeff Sessions, Trump’s nominee to be the next attorney general. You know what really gets Sessions upset? Anyone who challenges the blatantly unconstitutional practice of civil asset forfeiture.
There might somewhere be a second prominent American who endorses today’s civil forfeiture practices, but one such person is “very unhappy” with criticisms of it. At a 2015 Senate Judiciary Committee hearing on forfeiture abuses, one senator said “taking and seizing and forfeiting, through a government judicial process, illegal gains from criminal enterprises is not wrong,” and neither is law enforcement enriching itself from this. In the manner of the man for whom he soon will work, this senator asserted an unverifiable number: “95 percent” of forfeitures involve people who have “done nothing in their lives but sell dope.” This senator said it should not be more difficult for “government to take money from a drug dealer than it is for a businessperson to defend themselves in a lawsuit.” In seizing property suspected of involvement in a crime, government “should not have a burden of proof higher than in a normal civil case.”
IJ’s Robert Everett Johnson notes that this senator missed a few salient points: In civil forfeiture there usually is no proper “judicial process.” There is no way of knowing how many forfeitures involve criminals because the government takes property without even charging anyone with a crime. The government’s vast prosecutorial resources are one reason it properly bears the burden of proving criminal culpability “beyond a reasonable doubt.” A sued businessperson does not have assets taken until he or she has lost in a trial, whereas civil forfeiture takes property without a trial and the property owner must wage a protracted, complex and expensive fight to get it returned. The Senate Judiciary Committee might want to discuss all this when considering the nominee to be the next attorney general, Alabama Sen. Jeff Sessions.
It’s appalling to me that someone who is likely to become the highest law enforcement officer in the land would make such an absurd argument in defense of something so obviously wrong. Yes, the government should have a burden of proof higher than in a normal civil case when seizing property. And you know why? Because the Constitution says so quite clearly. The government may not search or seize property without a warrant based on probable cause, which cannot exist when seizing property in a criminal case — especially when, in many of those cases, charges aren’t even filed.
The burden of proof should be patently obvious: Unless and until the government proves its case and convicts the person of a crime, they cannot seize their property on the grounds that it was used to commit that crime or gained through that crime. An attorney general who does not understand this is appalling.