I have heard a lot of talk lately about Jeff Sessions’ order regarding civil asset forfeiture. I’ve heard a lot of “screaming” about how civil asset forfeiture is unconstitutional and Mr. Sessions is expanding it and others just as loud saying how necessary it is to help control crime, especially drug cartels.
Attorney General Jeff Sessions just made it easier for police to seize cash and property from people suspected ─ but not necessarily charged with or convicted ─ of crimes.
http://www.nbcnews.com/news/us-news/jeff-sessions-removes-restrictions-controversial-police-seizures-n784476
Attorney General Jeff Sessions rolled back a series of Obama-era curbs on civil-asset forfeiture on Wednesday, strengthening the federal government’s power to seize cash and property from Americans without first bringing criminal charges against them.
https://www.theatlantic.com/politics/archive/2017/07/sessions-forfeiture-justice-department-civil/534168/
These sound horrible and terrible, but what are the facts?
What Mr. Sessions’ did appears to not be as unconstitutional as the headlines imply. Don’t get me wrong, much of what I’ve read about civil asset forfeiture is blatantly illegal. unconstitutional and just plain morally wrong. But reading the actual order, (remember we go to original documents), I find this language:
Federal forfeiture of property seized lawfully by state and local law enforcement agencies is authorized whenever the conduct giving rise to the seizure is in violation of federal law.
The order A.G. Sessions issues states that legally forfeited property may be authorized when “the conduct giving rise to the seizure is in violation of federal law.” Furthermore, Policy Directive 17-1 send to the Department of Justice states:
[Forfeitures] of cash in amounts equal to or less than $10,000 may require additional safeguards. Those adoptions will be permissible where the seizure was conducted: (1) pursuant to a state warrant, (2) incident to arrest for an offense relevant to the forfeiture, (3) at the same time as a seizure of contraband relevant to the forfeiture, or (4) where the owner or person from whom the property is seized makes admissions regarding the criminally derived nature of the property. If a federal agency seeks to adopt cash equal to or less than $10,000 and none of these safeguards is present, then the agency may proceed with the adoption only if the U.S. Attorney’s Office first concurs.https://www.justice.gov/file/982616/download
Notice that, at least in cases involving cash less that $10,000 several protections are given including the need for a state warrant, arrest and admission of the criminal nature of the property. Yes, the AG’s office may allow the forfeiture even if the safeguards are not present, which would be a violation of a person’s 4th Amendment rights against unreasonable search and seizure, and that is part of the problem. The other part is not the AG’s fault but the fact that law enforcement may use the federal program to bypass state and local laws restricting the use of civil asset forfeiture.
What is Civil Asset Forfeiture?
At it’s most basic level, asset forfeiture is supposed to be a way for the government to confiscate ill gotten gains. Most people agree with the idea that someone shouldn’t profit from illegal activity, so they don’t see a problem. The problem is, many civil asset forfeiture laws allow the confiscation of cash and property on the suspicion of a crime and that is a problem!
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
If there is a more blatant violation of the 4th Amendment it would be hard to find. No warrant, just the accusation that you posses illegally gotten gains and poof, it’s gone! And try getting your property back! Most jurisdictions require you to prove that the property was not illegally gotten, in other words guilty until proven innocent, and you get to pay lawyers for the privilege! I’ve heard of law enforcement charging property, (cars, homes, boats, etc.) with a crime in an effort to avoid returning it. This is illegal, immoral, unconstitutional and probably a bunch of adjectives that would not be appropriate, and we should not stand for it. It is a blatant power and money grab by those who we’ve hired to protect us from power and money grabs.
If the data I found at The Federalist is correct, people had more property confiscated by federal law enforcement than by burglars. If this is true, who’s the real thief?
Conclusion
As is often the case, the headlines don’t tell the whole story. No matter how you feel about law enforcement, nobody, not even the government should be able to come take your stuff without due process. We should be bringing these abuses to our representatives and demanding they uphold their oath to protect the Constitution. And we should be contacting the AG & the President letting them know that the Attorney General’s office does not have the authority to concur with the unconstitutional acts of others.
