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.
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.
Additionally, many states allow law enforcement agencies to keep cash that they seize, creating what critics characterize as a profit motive. The practice is widespread: In 2014, federal law enforcement officers took more property from citizens than burglars did. State and local authorities seized untold millions more.
Since 2007, the Drug Enforcement Administration alone has taken more than $3 billion in cash from people not charged with any crime, according to the Justice Department's Inspector General.
The practice is ripe for abuse. In one case in 2016, Oklahoma police seized $53,000 owned by a Christian band, an orphanage and a church after stopping a man on a highway for a broken taillight. A few years earlier, a Michigan drug task force raided the home of a self-described “soccer mom,” suspecting she was not in compliance with the state's medical marijuana law. They proceeded to take “every belonging” from the family, including tools, a bicycle and her daughter's birthday money.
In recent years, states have begun to clamp down on the practice.
“Thirteen states now allow forfeiture only in cases where there's been a criminal conviction,” said Robert Everett Johnson, an attorney for the Institute for Justice, a public interest law firm that represents forfeiture defendants.
In 2015, Eric Holder's Justice Department issued a memo sharply curtailing a particular type of forfeiture practice that allowed local police to share part of their forfeiture proceeds with federal authorities. Known as “adoptive” forfeiture, it allowed state and local authorities to sidestep sometimes stricter state laws, processing forfeiture cases under the more permissive federal statute.
These types of forfeitures amounted to a small total of assets seized by federal authorities, so the overall impact on forfeiture practices was relatively muted. Still, criminal justice reform groups on the left and the right cheered the move as a signal that the Obama administration was serious about curtailing forfeiture abuses.
In his speech Monday, Attorney General Sessions appeared to specifically call out adoptive forfeitures as an area for potential expansion. “Adoptive forfeitures are appropriate,” he said, “as is sharing with our partners.”
“This is a federalism issue,” Johnson said. “Any return to federal adoptive forfeitures would “circumvent limitations on civil forfeiture that are imposed by state legislatures … the Department of Justice is saying 'we're going to help state and local law enforcement to get around those reforms.'”
The Department of Justice did not return a request for comment.