Last summer, New Hampshire proudly joined a growing list of states pushing back against long-standing and abusive civil forfeiture laws. Recognizing the importance of due process considerations in any proceedings — criminal or civil — some states are acknowledging the need to reform policies that permit law enforcement to seize assets and cash. Two states — New Mexico and Nebraska — have eliminated their forfeiture laws altogether.
Most jurisdictions across the United States grant law enforcement broad reaching authority to seize assets in cases of suspected criminal conduct — drug related or otherwise. Seizure is often permissible even before and without a criminal conviction. The practice of civil forfeiture has often led to innocent individuals losing property without any legal due process protections. A mere allegation or suspicion of criminal activity is frequently sufficient for the accused to lose assets even before the government seeks formal charges.
Despite being a policy fraught with concerns, Attorney General Jeff Sessions announced Monday that he will issue a directive to federal agencies to increase asset seizures. Opponents of “policing for profit” practices worry that Sessions’ plan will contribute to the existing widespread abuses of civil forfeiture. Additionally, Sessions is seeking to help states circumvent Obama-era reforms designed to increase forfeiture legitimacy and transparency.
Before Donald Trump seized power and installed Sessions as the nation’s chief law dog, Washington, D.C. had enacted sweeping reforms of its own civil forfeiture practices. In 2014, the District of Columbia City Council passed the Civil Asset Forfeiture Amendment Act. With enhanced due process protections, Washington’s reformed practices also targeted policing for profit policies that have earned condemnation and criticism from national civil rights groups and instilled deep seeded public mistrust and skepticism.
For anyone who has ever ogled a $100,000 Porsche or Hummer emblazoned with their local police department’s logo, those vehicles are probably the result of some form of forfeiture action. Forfeiture gives law enforcement officials unbridled powers to seize assets (cars, property, cash) believed — not proven — to have facilitated or originated from criminal enterprises.
Recovery of seized assets is nearly impossible because of the twisted rules of procedure that govern the process. Property owners bear the burden of proof against mere suspicion and uncharged offenses. Recovery proceedings entail years of expensive litigation attempting to prove innocence against a non-existent crime. When the government does not pursue formal charges, civil forfeiture is a due process nightmare that leaves the innocent prejudiced in courts where law enforcement officers’ credibility usually trumps the suspect.
In a small number of states pursuing reform, forfeiture rules have changed so that property may only be seized after a defendant has been convicted of a crime. In these states, the courts have shifted the burden of proof dramatically. Asset owners now enjoy being presumed innocent, as they should be. Moreover, in cases of home seizures, a person must have been convicted of a crime.
In the midst of states’ reform efforts, Sessions indicated that federal law enforcement agencies will soon begin pursuing escalated forfeiture programs. The Washington Post said it best with a headline that warned, “Jeff Sessions Wants to Take More Cash from American Citizens.”
Even in states where civil forfeiture is now more regulated, a common practice called equitable sharing still allows state and local law enforcement agencies to benefit from federal asset seizures — in some cases up to an 80% share. Equitable sharing is a tempting form of bribery for small agencies with limited resources and Sessions suggested Monday that his departments would help states avoid policies designed to cut back on the practice. The policy shift is yet another example of the Trump regime’s strategy of “One step forward, too many steps back.”
Beyond due process violations, another consideration in the use of seized assets is that abuses often lead to more damage than good, especially when the public perceives it as a heavy handed policing for profit agenda. With little to no oversight of police practices, many jurisdictions face public scrutiny and mistrust in how seized assets are utilized.
Once again, Trump and his regime underlings are demonstrating that making America great again is an oxymoronic policy. The federal government — every Trump appointee-headed agency included — is engaged in an anti-progressive attack on, and rollback of, constitutional, civil, and human rights policies aggregated over the past 240 years. With Sessions’ policy shift on Monday, Trump has succeeded in bringing the United States a step closer to his favorite police state — only in America we pay our robbers in dollars and not rubles.