by Derek Gilna
As noted in this issue's cover story, due to past abuses, restrictions were placed on the federal equitable sharing program in which state and local law enforcement agencies could partner with federal officials and share the spoils of civil asset forfeitures. The restrictions, implemented in January 2015, limited the ability of federal officials to “adopt” state and local forfeiture actions and benefit from more lenient federal policies over state law.
However, on July 17, 2017, U.S. Attorney General Jeff Sessions ignited a storm of criticism when he announced the relaxation of the restrictions on the Department of Justice’s equitable sharing program, effectively reinstating policies that had been reined in under the Obama administration. During an address to the National District Attorneys Association in Minneapolis, Sessions said, “we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their illegal activity.”
Civil asset forfeiture has been widely criticized since it allows law enforcement officials to seize property without criminal convictions, or in many cases even indictments, and has been used to target innocent property owners.
Even though Sessions claimed that asset forfeitures would be done with “care” and “professionalism,” critics on both sides of the political aisle expressed skepticism.
“This is a troubling decision for the due process protections afforded to us under the Fourth Amendment as well as the growing consensus we’ve seen nationwide on this issue,” said Congressman Darrell Issa, a Republican from California. “Ramping up adoptive forfeitures would circumvent much of the progress state legislatures have made to curb forfeiture abuse.”
The previous equitable sharing program was riddled with abuses, with state and local law enforcement officials skirting more restrictive state laws in order to reap the benefits of federal forfeiture actions – up to 80% of seized assets – which were often spent on controversial, off-budget purchases.
Under Sessions’ order, the new guidelines for asset forfeitures include obtaining probable cause justification from local law enforcement agencies before federal officials agree to become involved; the DOJ also would have to notify property owners of seizures within 45 days. Additionally, it will be more difficult for local law enforcement agencies to seize property unless they obtain a state warrant, have made an arrest, the owner has confessed to breaking the law or authorities have seized other contraband, such as drugs, along with funds subject to forfeiture. Without meeting at least one of those conditions, state and local authorities will be required to obtain federal approval to seize assets under federal law; such approval is also needed for forfeiture actions involving less than $10,000 in cash.
Despite these restrictions, critics were not convinced.
“This is a step in the wrong direction and I urge the Department of Justice to reconsider,” said Rep. Jim Sensenbrenner, a Republican from Wisconsin. “Expanding forfeiture without increasing protections is, in my view, unconstitutional and wrong.”
A bill introduced in Congress earlier this year, the FAIR Act (S.642/H.R.1555), would make it easier for innocent forfeiture victims to recover their property, and direct the proceeds of forfeitures into a Congressional fund. Republican Senator Rand Paul, who sponsored the FAIR Act, stated, “I oppose the government overstepping its boundaries by assuming a suspect’s guilt and seizing their property before they even have their day in court.”
Another bill to reform asset forfeiture practices, the DUE PROCESS Act (H.R.1795), was introduced in Congress by Rep. Sensenbrenner on March 29, 2017.
“There’s bipartisan consensus in states all over the country that forfeiture has gone too far and needs to be constrained,” said ACLU of Illinois staff attorney Ben Ruddell. “Now you have the attorney general of the United States saying, ‘We have to double down and do more of this.’ He’s completely swimming against the tide of current thinking.”
Sources: Associated Press, The New York Times, The Atlantic, www.aclu.org, www.nbcnews.com, www.thehill.com
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