President Trump’s Attorney General Jeff Sessions has a reputation as a law-and-order guy, but the plan he announced this past week to step up civil asset forfeiture efforts skirts the law and jeopardizes order.
The plan is to reverse an Obama administration policy that restricted how often federal agencies would accept property — cash, vehicles, homes, airplanes — seized by local police agencies under suspicion it was used to perpetrate a crime such as drug dealing. That seized property is sold and the local police get 80 percent of the profits to spend as they see fit. This is called “equitable sharing.”
Sessions rationalized his policy change by saying “civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed, and it weakens the criminals and the cartels. Even more importantly, it helps return property to the victims of crime. Civil asset forfeiture takes the material support of the criminals and instead makes it the material support of law enforcement, funding priorities like new vehicles, bulletproof vests, opioid overdose reversal kits, and better training.”
Often property is seized and no one is ever convicted of an actual crime. The owner of the cash or property essentially must prove themselves innocent in a civil court.
In a 2010 report called “Policing for Profit: The Abuse of Civil Asset Forfeiture,” the Institute for Justice (IJ) noted that the practice provides an incentive for local police to seize property to boost their budgets.
Sessions’ revised seizure policy allows local agencies to skirt state laws that restrict civil asset forfeitures. In 2014, the Justice Department reported $4.5 billion in asset forfeiture revenue.
In this past session of the Nevada Legislature Sen. Don Gustavson of Sparks filed a bill that would have required proof of a criminal conviction, a plea agreement or an agreement by the parties concerned before property could be forfeited. The bill died without a vote.
“Nevada forfeiture law provides paltry protection for property owners from wrongful forfeitures,” the IJ reports. “The government may seize your property and keep it upon a showing of clear and convincing evidence, a higher standard than many states but still lower than the criminal standard of beyond a reasonable doubt. But the burden falls on you to prove that you are an innocent owner by showing that the act giving rise to the forfeiture was done without your knowledge, consent or willful blindness. Further, law enforcement keeps 100 percent of the revenue raised from the sale of forfeited property.”
Still, Nevada local law enforcement often engages in “equitable sharing” with federal agencies, according to IJ, which resulted in $21 million accruing to the local agencies over a decade.
There have been a number of instances in Nevada in which property was seized without anyone ever being charged with a crime.
In January 2013 police seized $167,000 from a man driving a motor home westbound along Interstate 80 in Elko County. A judge just recently ordered the money returned.
Over a two-year period Humboldt County deputies seized $180,000 in cash from motorists. One deputy was caught on tape telling a tourist, “You’ll burn it up in attorney fees before we give it back to you.”
The U.S. attorney’s office in Las Vegas demanded a local woman forfeit the $76,667 in salary she earned while running an office for her brother, who was later convicted of mortgage fraud. The sister was never charged. A federal judge called the forfeiture effort “the most egregious miscarriage of justice I have experienced in more than twenty years on the bench.”
This happened though the Fifth Amendment provides: “No person shall be … deprived of life, liberty, or property, without due process of law …”
In his policy announcement Sessions admitted there can be problems with asset forfeitures, but he promised to “protect the rights of the people we serve. Law-abiding people whose property is used without their knowledge or without their consent should not be punished because of crimes that others have committed.”
That promise hardly constitutes “due process of law.”
Congress should rein in this abuse-prone practice.
In fact, Republican Sen. Rand Paul of Kentucky and Rep. Tim Walberg of Michigan have reintroduced the Fifth Amendment Integrity Restoration (FAIR) Act.
“The FAIR Act will ensure that government agencies no longer profit from taking the property of U.S. citizens without due process,” Paul said, “while maintaining the ability of courts to order the surrender of proceeds of crime.”
A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.