Sessions Wants More Civil Asset Forfeiture

Sessions Wants More Civil Asset Forfeiture July 19, 2017

Over the last few years, many states have passed laws to restrict the manifestly corrupt and unconstitutional practice of civil asset forfeiture. Attorney General Jeff Sessions, predictably, wants to reverse that so the government can steal money and property from people who have done nothing wrong.


Attorney General Jeff Sessions on Monday said he’d be issuing a new directive this week aimed at increasing police seizures of cash and property.

“We hope to issue this week a new directive on asset forfeiture — especially for drug traffickers,” Sessions said in his prepared remarks for a speech to the National District Attorney’s Association in Minneapolis. “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.”

Asset forfeiture is a disputed practice that allows law enforcement officials to permanently take money and goods from individuals suspected of crime. There is little disagreement among lawmakers, authorities and criminal justice reformers that “no criminal should be allowed to keep the proceeds of their crime.” But in many cases, neither a criminal conviction nor even a criminal charge is necessary — under forfeiture laws in most states and at the federal level, mere suspicion of wrongdoing is enough to allow police to seize items permanently.

As old friend Radley Balko points out, adoptive forfeitures is a way of getting around those state restrictions so they can take property from people without ever even charging them with a crime, much less convicting them:

For example, some states prevented police departments and/or prosecutors’ offices from keeping the proceeds from civil forfeitures, instead earmarking them for schools, or diverting them into the general fund. Others allowed police or prosecutors to keep a smaller share, required police to show more evidence of criminality before allowing a forfeiture, or afforded more rights to property owners. The federal government responded with the adoption program. Under this policy, a local police department or prosecutor need only call the local branch of the Bureau of Alcohol, Tobacco, Firearms and Explosives, Drug Enforcement Administration, or other federal law enforcement agency and ask them to join the case. Even minimal federal participation makes the investigation federal, which means the forfeiture policy will now be governed by federal law. The federal agency will then return a large percentage of the federal proceeds back to the local police agency.

The adoption policy is an end-around the state legislatures. It’s one thing if an investigation involves significant participation between federal and state or local law enforcement, and that investigation produces forfeiture proceeds to be divvied up. Such investigations comprise a broader class of forfeitures that are known as “equitable sharing” cases. They’re still problematic, especially if it’s a civil forfeiture that doesn’t require the state to produce any actual criminal charges. But adoption cases are much more pernicious. The sole purpose of the adoption policy is to give police agencies a way to ignore state law. It was devised to let local cases become federal cases with little to no involvement from actual federal law enforcement officials…

Just to be clear about what this would do: Sessions wants to force federal forfeiture law onto states whose legislatures have explicitly rejected it. And he wants to do this to expand a policy that even conservative groups feel is unfair and unjust, that studies have shown is biased by class and race, and that 80 to 85 percent of Americans oppose.

Sessions claims to be a federalist — an advocate for “states’ rights” and local control. But he makes exceptions. What’s interesting is when he makes exceptions and when he doesn’t. For example, Sessions thinks the Voting Rights Act — which aims to preserve the voting rights of minorities — is intrusive federal meddling. He thinks that Justice Department’s investigations into police abuses — which frequently include allegations of racial bias, and tend to be disproportionately directed at minorities — are also intrusive federal meddling. He thinks that requiring states to recognize same sex marriage — a protection for a minority group — is intrusive federal meddling. He feels the same way about adding sexual orientation to the list of categories protected by federal hate crimes laws, and about requiring states to protect transgender students — again, these are all protections for a specific minority group.

So where does Sessions make exceptions to “states’ rights”? For starters, he thinks sanctuary cities should be punished for not enforcing federal immigration law, despite the wishes of the people who live in those cities, and despite protests from law enforcement that doing so would make those cities more dangerous. The people likely to be hassled by Sessions’s favored policy here are, of course, also minorities, whether they’re citizens, legal residents or undocumented. He has expressed his desire to impose federal law on the states that have legalized recreational marijuana. Though Sessions hasn’t yet openly targeted those states, that’s likely more for practical reasons than ideological ones. He is on record expressing support for enforcing federal drug laws in those states and reportedly has sought support from members of Congress to target medical marijuana distributors in states where the drug is legal. Marijuana prohibition, like all drug prohibition, also disproportionately targets minority groups. And now, Sessions wants to reinstate the adoption program, which would essentially impose federal civil forfeiture law on states that have explicitly acted to make forfeiture more difficult. Forfeiture too disproportionately affects minority groups.

How entirely unsurprising.

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