Robert Everett Johnson and Nick Sibilla work at the Institute for Justice.
Surveys show 84 percent of Americans oppose it. Both the Republican and Democratic party platforms condemn it. More than 230 newspaper editorials have denounced it. And in the last three years alone, 24 states have taken steps to restrict it. So why is Attorney General Jeff Sessions looking to increase it?
We’re talking about civil forfeiture, a legal tool that allows law enforcement agencies to confiscate property — cash, cars, homes, even businesses — without convicting anyone of a crime. Mere suspicion is sufficient to justify a seizure. Then, property owners must prove their own innocence to get their property back.
With few safeguards for the innocent, civil forfeiture is one of the greatest assaults today on private property rights and a fair, impartial justice system – both foundations of a healthy democracy.
Public outrage has grown as stories of abuse have proliferated. Just last year, for instance, The Post reported how police in Muskogee County, Okla., seized more than $50,000 from the manager of a Burmese Christian rock band. That included money intended for an orphanage in Thailand, still sealed in donation envelopes.
Or consider Chris and Markela Sourovelis. The Philadelphia district attorney sought to forfeit their family home because their son was caught selling $40 worth of drugs.
Outrage has generated reform. State legislatures across the country have passed measures to shore up property rights, and a full 14 states now require a criminal conviction to forfeit property. Blue states and red states alike — in every region of the country — have enacted reforms.
Now those reforms are under attack. On Wednesday, Sessions announced a new policy that will make it easier for state and local law enforcement to sidestep state-level protections for property owners.
The new Justice Department policy expands a federal forfeiture program called “equitable sharing.” Equitable sharing allows state police to seize property and send it to federal prosecutors for forfeiture under federal law, even if it could not be forfeited under state law. State police then get to keep up to 80 percent of the proceeds, creating a financial incentive to take property. In other words, equitable sharing encourages police and prosecutors to become bounty hunters, even if that would circumvent state law.
The decision to expand equitable sharing is especially egregious because equitable sharing has long undermined state efforts to protect citizens from abuse. In a searing exposé of equitable sharing in 2014, The Post identified nearly 62,000 cash seizures worth more than $2.5 billion, all made “without search warrants or indictments.” Their investigation also found more than 500 task forces and departments that “seized the equivalent of 20 percent or more of their annual budgets.”
Largely in response to such criticisms, then-Attorney General Eric Holder took steps in January 2015 to rein in equitable sharing. Those reforms were themselves imperfect, but they did make a difference. The Drug Enforcement Agency — which pursues the most forfeiture cases through the Justice Department — saw cash seizures drop by half. Now, Wednesday’s policy reverses Holder’s reforms.
Announcing the change, Sessions promised “safeguards” to protect innocent property owners. But the safeguards included in the policy amount to little more than a promise by law enforcement to be more careful.
The problem, of course, is that these “safeguards” will be implemented by the same law enforcement agencies that stand to benefit financially from forfeitures. Indeed, they will be implemented by the same agencies that have engaged in abuse in the past.
Promises of self-restraint are well and good, but in the end the only real safeguard would be judicial oversight. Before police and prosecutors can take property, they should have to convict someone of a crime.
Of course, that safeguard is nowhere to be found in the new Justice Department policy. To the contrary, the directive says the government can continue to forfeit “personal residences” even “where title or ownership lies with persons not implicated in illegal conduct.”
To justify the change, the attorney general repeatedly stressed the importance of going after “criminals.” But, by definition, civil forfeiture targets people who have not been convicted of anything.
Everybody agrees that criminals should not be allowed to keep their ill-gotten gains. That aim can be accomplished using criminal forfeiture, under which property is forfeited only following a conviction.
As a law enforcement tool, civil forfeiture is worse than ineffective — it actually encourages police to focus on raising money at the expense of fighting crime. A report from the Justice Department’s own inspector general looked at a sample of 100 seizures by the DEA and found that more than half were not related to any identifiable criminal investigation or prosecution. In other words, police took the cash and, oftentimes, let the purported “criminals” walk free.
With the attorney general’s announcement, the onus now shifts to Congress to act. The Fair Act, introduced by Sen. Rand Paul (R-Ky.), would eliminate equitable sharing once and for all. Another proposal, the Due Process Act, does not go so far but would still put in place meaningful procedural safeguards.
Civil forfeiture has no place in a free country. State legislatures are taking steps to uphold property rights. The question is, will the federal government work with them or against them?