Donald Trump made two things abundantly clear during a meeting with county sheriffs last February: He did not know what civil asset forfeiture was, and he wanted to see more of it. The president will get his wish thanks to a directive issued last week by Attorney General Jeff Sessions, who has a clearer idea of what civil forfeiture entails but is only slightly more sensitive to its potential for abuse.
That potential is built into the very concept of civil forfeiture, which allows police to take property allegedly tied to crime without charging the owner. Worse, law enforcement agencies get to keep revenue generated by forfeitures they initiate, which gives them a financial incentive to target people based on the assets they own rather than the threat they pose.
In theory, the government can forfeit a seized asset only after proving it is a tool or fruit of crime, typically drug trafficking. But the burden of proof is much lighter than in a criminal case, and it applies only if the owner challenges the seizure in court, which often costs more than the asset is worth.
Recognizing how easily innocent people can lose cash, cars, and homes to money-hungry cops, two dozen states and the District of Columbia have reformed their forfeiture laws since 2014. The changes include mandating data collection and reporting, strengthening standards of proof, and requiring a criminal conviction before some or all forfeitures.
By reviving federal "adoption" of forfeitures initiated by state or local agencies, Sessions is offering cops who chafe at these restrictions the option of ignoring them. Adoption, which Attorney General Eric Holder mostly eliminated in 2015, lets police and prosecutors evade state limits on forfeiture and keep up to 80 percent of the proceeds.
Seven states prohibit or restrict such circumvention. But in the rest, cops who do not like reforms aimed at protecting innocent property owners from legalized theft can once again easily dodge them with help from the Justice Department.
Although Sessions pays lip service to the need for safeguards, he argues that innocent owners are rare. "Over the last decade," he says, "four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court."
According to Sessions, that means only a "small minority of cases" involve people whose property was seized for questionable reasons. But since challenging forfeiture is difficult and may be prohibitively expensive, the failure to do so is hardly an admission of guilt.
Sessions says a state or local agency seeking federal adoption of a forfeiture will have to provide "information demonstrating that the seizure was justified by probable cause." But in practice probable cause may be little more than a hunch — e.g., you've got a lot of cash, so you must be a drug dealer. And given the obstacles to recovering seized property, such vague, unsubstantiated suspicions may be all the government needs to keep it.
The Fifth Amendment Integrity Restoration Act, reintroduced by Sen. Rand Paul, R., Ky., in March, would withdraw Sessions' invitation to forfeiture abuse by abolishing federal adoption along with the rest of the Justice Department's so-called Equitable Sharing Program, which includes loot grabbed in the course of joint operations. The FAIR Act, which has bipartisan support, also would strengthen the standard of proof in federal forfeiture cases, require the government to show that the owner of seized property consented or was willfully blind to its illegal use, give indigent owners a right to counsel, and assign forfeiture revenue to the general fund instead of the Justice Department.
Reforms like these should be supported by anyone who believes forfeiture "has become a tool for unscrupulous law enforcement officials, acting without due process, to profit by destroying the livelihood of innocent individuals, many of whom never recover the lawful assets taken from them." Those words should sound familiar to the president. They are part of his party's platform.
Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @jacobsullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.