Of all the appointments that Trump has made, the appointment of Jeff Sessions as Attorney General was the one I most opposed. The AG has a lot of power and Sessions’ ideas on crime are … archaic might be a generous word. He has ordered reviews of the consent decrees on troubled police departments. He wants to restore mandatory minimum drug sentences. He wants to revive DARE, one of the biggest wastes of money in the history of the Drug War. The Democrats focused on his past racism. But while I was concerned about that, I was way more concerned with his approach to law and order, one defined by more prisons, more cops, more laws, less freedom. You should read Radley Balko taking apart one of Sessions’ speeches on the Drug War, showing over and over again that Sessions is poorly informed and out of touch with what’s been going on in criminal justice reform for the last decade or so.
Yesterday, he dropped a bombshell:
Attorney General Jeff Sessions just made it easier for police to seize cash and property from people suspected ─ but not necessarily charged with or convicted ─ of crimes.
He did it by eliminating an Obama administration directive that prevented local law enforcement from circumventing state restrictions on forfeiture of civil assets. The technique was embraced in the early years of the war on drugs, but it has since been linked to civil rights abuses: people losing cash, cars and homes without any proven link to illegal activity; police taking cash in exchange for not locking suspects up; a legal system that makes it hard for victims to get their possessions back.
Two dozen states have made it harder for authorities to take property from suspects without first securing criminal convictions. Three have outlawed it entirely, according to the Institute for Justice, a nonprofit that advocates for reform.
Multiple states — conservative states — have been reigning in asset forfeiture as abusive and unconstitutional. Police departments have been trying to bypass these rules through “adoption” — getting the federal government to nominally participate in the case so they can just take the money regardless of state law. It is a perversion of the law and abuse of state’s rights. Eric Holder put a stop to that, requiring the Feds to respect state law in the matter, one of the few things he did right. Sessions now wants to reverse that. There are a few little protections left in place — review of seizures and scrutiny of smaller amounts. But this amount to open season.
Words can not express my disgust at this. Civil asset forfeiture — in which the property is charged with a crime and its owners must prove their innocence to get it back — is a violation of our most basic constitutional rights. The IJ calls it “policing for profit” and some police departments — notably that of Tenaha Texas — have become notorious for abusing the process. It shows the duplicity of supposed federalists like Sessions that they are all about “state’s rights” when it comes to discrimination but suddenly all against them the second a state wants to shore up the basic civil liberties of its citizens.
This is almost certainly unconstitutional, something that conservatives ought to understand instinctively. Like the Democrats’ crackpot plan to revoke the Second Amendment rights of U.S. citizens who have been neither charged with nor convicted of a crime simply for having been fingered as suspicious persons by some anonymous operative in Washington, seizing an American’s property because a police officer merely suspects that he might be a drug dealer or another species of miscreant does gross violence to the basic principle of due process. No doubt many of the men and women on the terrorism watch list are genuine bad guys, and no doubt many of those who have lost their property to asset forfeiture are peddling dope. But we are a nation of laws, which means a nation of procedural justice. If the DEA or the LAPD wants to punish a drug trafficker, then let them build a case, file charges, and see the affair through to a conviction. We have no objection to seizing the property of those convicted of drug smuggling — or of crimes related to terrorism, or many other kinds of offenses. We object, as all Americans should object, to handing out these punishments in the absence of a criminal conviction.
This was highway robbery perpetrated against American citizens by their own government. The official euphemism for the practice: “Civil-asset forfeiture.” And egregious abuses have happened in every region of the country. Over the last fifteen years, I have heard these abuses criticized by people from almost every part of the political right. The issue united conservatives at National Review and the Claremont Institute with Cato Institute libertarians and right-wing populists at Breitbart.
Conor also quote from Clarence Thomas’s scathing rejection of civil asset forfeiture, a must-read.
Lee was referring to conservative Supreme Court Justice Clarence Thomas’ notable dissent in an asset forfeiture case this June. Thomas wrote that forfeiture operations “frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.”
Data on asset forfeiture backs up what Thomas says. A Reason investigation of more than 23,000 police seizures in Cook County, Illinois over the last five years showed that Chicago’s poor neighborhoods were hit hardest by asset forfeiture. A similar investigation of Mississippi court records showed that law enforcement recorded many big hauls of cash, but the records were also littered with petty and abusive seizures.
A 2014 Washington Post investigative series found that warrantless police seizures of cash through the equitable sharing program have boomed since 9/11, hauling in $2.5 billion. Also in 2014, for the first time ever, the U.S. government seized more property from Americans than burglars did.
You can also watch John Oliver’s takedown of the practice.
If there’s a silver lining here, it’s that maybe Congress or the Court will wake up from their Constitutional stupor and put hard restraints on this abusive practice. But I prefer not to depend on that. Opposition to Sesssions’ directive should be immediate, sharp and relentless. We should not take one step back when it comes to civil asset forfeiture.