Why is AG Sessions allowing civil asset forfeiture?

AG Jeff Sessions is embracing state and local police taking cash and property from people suspected, but not charged, with a crime. Just because they want to.

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WASHINGTON, July 25, 2017 – Since 2008, thousands of police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a Justice Department civil asset forfeiture program, which allowed local and state police to make seizures and then share the proceeds with federal agencies.

Attorney General Jeff Sessions is in the news because President Trump is unhappy with his decision to recuse himself from the investigation into Russia’s involvement in the 2016 presidential campaign. A more legitimate reason to challenge Sessions, who as a conservative should be suspicious of the arbitrary use of government power, is his embrace of state and local police taking cash and property from people suspected, but not charged, with a crime.  Or civil asset forfeiture.

Two years ago, then-Attorney General Eric Holder barred state and local police from using federal laws to seize cash and other property without criminal charges or warrants.

Sessions has overturned that action leaving Americans at risk of having their homes, vehicles, and cash seized, but never returned, by police.


A Washington Post investigation in 2014 found that state and local police had seized almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001.  It was revealed that police routinely stopped drivers for minor traffic infractions, pressed them to agree to searches without warrants and seized large amounts of cash when there was no evidence of wrongdoing.

Police often spend the proceeds from the seizure with little oversight. In some cases, the police bought luxury cars, high-powered weapons, and armored cars.

Both Republicans and Democrats have been critical of the asset forfeiture program. Rep. Darrell Isa (R-CA) says that,

“Criminals shouldn’t be able to keep the proceeds of their crime, but…innocent Americans shouldn’t lose their right to due process or their private property rights…”  Former Attorney General Holder pointed out that the reform of civil forfeiture policy had been “supported by conservatives and progressives, Republicans and Democrats.”

Former Attorney General Holder pointed out that the reform of civil forfeiture policy had been “supported by conservatives and progressives, Republicans and Democrats.”

Kanye Bennett, legislative counsel for the ACLU, points out that, “We are talking about people who have not been convicted of a crime and are often not given a day in court to reclaim their possessions. Civil asset forfeiture is tantamount to policing for profit, generating millions of dollars annually that the agencies get to keep.”

“We are talking about people who have not been convicted of a crime and are often not given a day in court to reclaim their possessions. Civil asset forfeiture is tantamount to policing for profit, generating millions of dollars annually that the agencies get to keep.”

President Trump, despite his calls to cut back the power of government, at a meeting with county sheriffs on Feb. 7, embraced the civil asset forfeiture program and told the Justice Department to rescind the Obama administration’s reforms.

Conservatives, in particular, are not happy with the position being advanced by Trump and Sessions.

Editorially, The Washington Times declared:

“There’s nothing ‘civil’ about civil asset forfeiture.  It’s a law enforcement practice of seizing assets of suspects who may or may not have broken the law, and it invites abuse.  But Attorney General Jeff Sessions wants to expand it…Civil asset forfeiture has been widely abused at both the federal and state and local levels, and the innocent have lost hundreds of millions of dollars in cash and property.  According to the U.S. Justice Action Network, the federal Asset Forfeiture Fund netted a total of about $8 billion from 2014 through 2016.”

In July, reforms to Tennessee’s civil asset forfeiture laws enacted by the state legislature became effective.  These reforms were passed after a Knoxville lawyer told how a client had been pulled over on suspicion of drunk driving.  She was charged with possessing prescription drugs that turned out to be a store-bought antacid.  Police seized $11,000 of her cash that was not from the sale of drugs, prescription or otherwise, but from settling her late mother’s estate.  The charges were finally dropped but she didn’t get her money back without spending a lot of it on a lengthy legal fight.

Police seized $11,000 of her cash that was not from the sale of drugs, prescription or otherwise, but from settling her late mother’s estate.  The charges were finally dropped but she didn’t get her money back without spending a lot of it on a lengthy legal fight.

This program has been abused so widely that conservative groups such as Americans for Tax Reform have joined with liberal groups such as the ACLU and the NAACP to oppose it.  In the view of The Washington Times, “Standing the constitutional concept of ‘innocent until proven guilty’ on its head, civil asset forfeiture places the burden on the suspect to prove the ‘innocence’ of the cash and property—I.e., that they are not the fruit of illicit activity—before he or she can get property returned…We’re disappointed that Mr. Sessions is on the wrong side of civil-asset reform.”

In the view of The Washington Times, “Standing the constitutional concept of ‘innocent until proven guilty’ on its head, civil asset forfeiture places the burden on the suspect to prove the ‘innocence’ of the cash and property—I.e., that they are not the fruit of illicit activity—before he or she can get property returned…We’re disappointed that Mr. Sessions is on the wrong side of civil-asset reform.”

“Standing the constitutional concept of ‘innocent until proven guilty’ on its head, civil asset forfeiture places the burden on the suspect to prove the ‘innocence’ of the cash and property—I.e., that they are not the fruit of illicit activity—before he or she can get property returned…We’re disappointed that Mr. Sessions is on the wrong side of civil-asset reform.”

Writing in The American Conservative, Lucy Steigerwald notes that,

“A decade ago, only a handful of astute people realized that this policy was a scam…More money was taken through asset forfeiture in 2014 than burglary (some $5 billion total)…84% of Americans say they want to see the protocol end…Sessions says asset forfeiture is a ‘key tool.’ He said it ‘helps return property to the victims of crime.’  Does it?  The core objection that most people have is not that money from criminals is transferred to police.  The fundamental problem is taking money and property from people who have not yet been convicted of a crime, or even charged in some cases…Yes, a drug dealer might be carrying $15,000 in cash.  So might an antique dealer, a car-buyer, a horse-trader, a would-be business owner, or lots of other people who shouldn’t have to go to court to get their money back…The only way to answer Sessions’ unleashing of law enforcement is to abolish civil forfeiture in every state.”

For conservatives who oppose abusive government power to support civil forfeiture is to call into question whether they really have any understanding of what abuse of government really involves.  Consider the 2014 case in which a 40-year-old carpenter from New Jersey was stopped on Interstate 95 in Virginia for having tinted windows.  Police said he appeared nervous and he consented to a search.

The police took possession of $18,000 that he said was meant to buy a used car. He had to hire a lawyer to get his money back. This is considered a typical case.

Why President Trump and Attorney General Sessions do not see the civil forfeiture program as an abuse of government power is difficult to understand.  It holds open to question whether people who call themselves conservatives are, in fact, opposed to abusive government power or take this position only in a partisan manner on selective issues.

A growing number of critics on both the right and left call this program “legal plunder.” The burden of proof is upon President Trump and Attorney General Sessions to prove that it is not if they continue to embrace it.

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Allan C. Brownfeld
Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.