Imagine you own a small business that does a lot of cash transactions, like a convenience store, a deli or a coffee shop. The business had an excellent day. You hurry to the bank before it closes to deposit several thousand dollars of the day’s sales. A police officer stops you for going a few miles over the speed limit. He decides to search your car and finds the money. Although no drugs are found, the officer takes the money alleging it is the product of drug sales. He also takes your car claiming it is being used to sell drugs. Law enforcement officers have the authority of taking your money and property under practices known as cash seizure and asset forfeiture, also known as civil forfeiture. The practice allows law enforcement agencies to seize cash and property from people without judicial oversight or without charging the owner with a crime.
Although it seems unconstitutional and leads to abuse of power by law enforcement, on July 19, Attorney General Jeff Sessions announced that the Department of Justice was authorizing the use of adoptive forfeiture. Sessions’ order reversed policies implemented by former Attorney General Eric Holder that limited and in some cases prohibited this type of forfeiture. Adoptive forfeiture allows state and local law enforcement agencies in states that restrict the practice to seize property and give it to a federal agency. The latter officially forfeits the property under federal law. Afterwards, the state and federal agencies split the assets through the DOJ’s Equitable Sharing Program.
In his announcement, Sessions explained that “civil asset forfeiture is a key tool that helps law enforcement defund organized crime.” The money and assets seized from criminal enterprises, Sessions continued, “strengthens our law enforcement when we can share it together and use it to further our effort against crime.” The DOJ has indeed shared large sums of money through the Equitable Sharing Program. A review released in March by the DOJ’s Office of the Inspector General states that since 2000 the department has given $6 billion to state and local law enforcement agencies through the program.
The Inspector General’s review agrees that asset forfeiture can “financially undermine criminal organizations and deter illegal behavior.” However, the DOJ has no evidence to support its claim that the cash and assets seized through this policy undermine organized crime. The review found that the DOJ does not collect data on asset forfeitures and cannot determined if the practice is “appropriately used” or if it truly helps criminal investigations. The Inspector General also reviewed 100 cash-seizure cases from the Drug Enforcement Administration, the agency responsible for 80 percent of the DOJ’s cash seizures between 2007 and 2016. It found that the DEA could confirm that the seizures helped or advanced criminal investigation in only 44 of these cases. The numbers demonstrate that the practice is more effective at generating money for law enforcement agencies than at disrupting organized crime. The use of asset forfeiture is especially worrisome when we realize that 81 percent of the DEA’s forfeitures were administrative forfeitures (i.e., forfeitures of property done without judicial involvement). Through this type of forfeitures, the review explained, the DEA collected “approximately $3.2 billion” in the ten-year period indicated above.
The vast amounts of money collected through asset forfeiture led the Inspector General to express concerns about the risk of “creating the impression” that law enforcement agencies use asset forfeiture to generate revenue instead of disrupting criminal enterprises. This is one of the critiques conservative Justice Clarence Thomas conveyed in a statement in early March. “Civil forfeiture has in recent decades become widespread and highly profitable,” Thomas explained. Since law enforcement agencies can keep the forfeited assets, he continued, they “have strong incentives to pursue forfeiture.”
Certainly, criminals should not be allowed to keep the money and assets they gained through illegal activities. Law enforcement agencies need funds to be able to do their work. The assets seized from criminal activities can help cover some of the cost of law enforcement operations. But, seizing people’s cash and property without evidence that a crime has been committed, that the seized property was used for or was the product of criminal activity and without charging the owner with a crime is a violation of people’s property rights.
This aspect of the practice is what has provoked the sharpest criticism across the political spectrum. The Inspector General’s review warns that cash seizures and asset forfeiture “present unique potential risks to civil liberties.” The potential risks of the practice have already translated into real violations of people’s rights. In his statement, Thomas confirmed that “this system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses.” Asset forfeiture has also been criticized by the American Civil Liberties Union and by conservative Republican politicians. Articles in Time and The Atlantic reported that Representatives Jim Sensenbrenner of Wisconsin and Darrell Issa of California, and Senators Rand Paul of Kentucky, Mike Lee of Utah and Ted Cruz of Texas oppose the practice. Issa and Paul argue that the practice also violates the Fourth and Fifth Amendments.
The Fourth Amendment protects people “against unreasonable searches and seizures.” It also states that warrants have to be issued “upon probable cause… and particularly describing the place to be searched, and the persons or things to be seized.” The Fifth Amendment protects people from being deprived “of life, liberty, or property, without due process of law.” Hence, the government would have to charge a person with a crime or issue a warrant under probable cause to be able to seize a person’s property. There are some exceptions to the warrant requirements of the Fourth Amendment, like when a person consents to a search, when police does investigatory stops or when police seize items (e.g., illegal drug) that are in plain view. However, the presence of several thousand dollars alone—as in the case described above—does not constitute evidence that a crime has been committed and should not be seized by authorities.
Arguing for the legality of the practice, Sessions explained that “over the last decade, four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court.” The paucity of court challenges does not imply that the practice is constitutional or that people believe the government has the power to seize their property without probable cause or due process. The reason for the small number of court challenges, as the ACLU explains, is that recovering seized property is “notoriously difficult and expensive, with costs sometimes exceeding the value of the property.” The difficulty and the cost of the process makes it less likely for people to challenge a seizure or forfeiture in court, not a belief that they are guilty of a crime or that the practice is right. Furthermore, as Thomas explained, “forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.”
Attorney General Sessions should heed the advice of his conservative Republican colleagues and revise this policy. He should also revise the claims that cash seizure and asset forfeiture are effective tools to fight organized crime. The ability to seize someone’s property without probable cause or a warrant transforms civil forfeiture from a tactic to fight crime into a mechanism for generating revenue at the expense of innocent people. It gives an economic incentive for law enforcement to recklessly employ the practice. It leads to abuses of power, especially of the people who do not have the resources to challenge forfeitures in court. And, as Thomas hinted in his statement, the legal justification for the use of the practice is in question. Sessions’ mission to combat crime is laudable. However, civil forfeiture is the wrong policy. I hope the bright minds in the DOJ devise a better and constitutional method to cripple criminal organizations. A method that does not lead to abuse or targets innocent and vulnerable people.