Attorney General Jeff Sessions on Wednesday rolled out a new civil asset forfeiture policy aimed at expanding law enforcement’s ability to seize property from people suspected of criminal activity.
The new policy allows the federal government to take all assets seized lawfully by state or local law enforcement whenever the crime causing the seizure violates federal law. The Justice Department said the change advances Sessions’ recently created task force to combat violent crime and will crack down on criminals.
Critics have argued the civil asset forfeiture seizes property from people who are innocent and are never charged with a crime. But Deputy Attorney General Rod Rosenstein told reporters on Wednesday that the aim of the change is to focus on assets related to criminal activity.
“It’s not about taking assets from innocent people,” Rosenstein said. “It’s about taking assets that are the proceeds of […] criminal activity, primarily drug dealing.”
Rosenstein added civil asset forfeiture is “not about criminal convictions, it’s about seizing the proceeds of crime. Sometimes there will be criminal prosecutions, sometimes there won’t.”
Sessions’ new policy reverses a 2015 decision by former Attorney General Eric Holder that put restrictions on civil asset forfeiture.
Holder’s memo told state and local jurisdictions that federal officials would restrict “adoptive” forfeitures, which is when the federal government adopts property taken by law enforcement authorities and forfeits it under federal law. As a result of the process, local agencies can get back up to 80 percent of the proceeds of forfeited property, while the federal government keeps at least 20 percent.
In 2015, Holder said the limits on seizures were meant to “take the profit out of crime and return assets to victims, while safeguarding civil liberties.”
Holder’s policy created a broad disincentive for police to seize goods under federal law, since in many cases, their state’s forfeiture laws were tougher then what the federal government had in place. Rosenstein admitted that under the Holder memo, “one of the numbers you see is sharp decline in revenue, the other number you see is the increase in drug abuse and drug overdose deaths.”
Under the new policy, state and local police agencies must provide more detailed information to the federal government about probable cause justifying a seizure before federal authorities get involved.
The federal government must also decide more quickly if they will seize the property. Specifically, state and local agencies must request federal adoption within 15 days following the seizure of an owner’s assets, and the Justice Department must tell the owners their rights and the status of their assets within 45 days.
Sessions’ new policy also sets out rules for state and local police when less than $10,000 in assets are seized. If authorities want to pursue adoptive forfeitures in these cases, they must meet one of the following conditions: getting a state warrant, making an arrest related to the seizure, seizing contraband such as drugs along with the money, or when the owner of the property has confessed to a crime.
If none of these conditions are met, it’s up to the state’s U.S. attorney to decide if adoptive forfeiture can take place.
The department’s inspector general said in March more than $6 billion in forfeited funds has been shared with state and local law enforcement since fiscal year 2000.
More than a dozen law enforcement groups were at the Justice Department in Washington on Wednesday to show support for Sessions’ new policy, including the Federal Law Enforcement Officers Association, the International Association of Chiefs of Police, the National Association of Assistant U.S. Attorneys, the National Fraternal Order of Police, and the National Narcotics Officers Association Coalition.
The new policy goes hand-in-hand with Sessions’ vocal commitment to fighting crime and supporting local law enforcement departments in this endeavor. Beginning in 2018, law enforcement agencies participating in the Justice Department’s forfeiture program must go through more training.
At a roundtable discussion with county sheriffs in February, President Trump told the officers they were “encouraged” to take property through asset seizure.
“For over 30 years, the asset forfeiture program has allowed law enforcement to deprive criminals of both the proceeds and tools of crime,” Chuck Canterbury, president of the Fraternal Order of Police, wrote in a December op-ed in the Daily Caller.
“The resources provided by the Equitable Sharing Program have allowed agencies to participate in joint task forces to thwart and deter serious criminal activity and terrorism, purchase equipment, provide training, upgrade technology, engage their communities, and better protect their officers,” he added. “It has been remarkably successful.”
Critics have also said civil asset forfeiture is ripe for abuse.
“There is going to be scrutiny to make sure that every forfeiture that is adopted by the federal government complies with the Constitution, and particularly with the Fourth Amendment,” Rosenstein told reporters. “I think that’s true, if you look at any federal program, some proportion of it is going to be used improperly, some proportion of it is going to be lost to fraud. I don’t think that’s the right way to measure the effectiveness of the program. You need to look at the overall impact of the program.”
He rejected the argument that forfeiture creates a “perverse” profit incentive for law enforcement.
“Our law enforcement agencies are motivated by reducing crime. The fact that assets that are forfeited through this [Equitable Sharing Program] … I don’t think there’s a perverse incentive,” he said.
Local law enforcement agencies aren’t using the seized assets to buy “margarita machines,” Rosenstein added. “But I think that if you look at the volume of forfeitures and the amount of money and property that is seized, a very small portion of those cases are cases that implicate those kind of concerns,” he explained.
Republican Sen. Mike Lee of Utah immediately criticized the new Justice Department policy, and reminded the agency that Supreme Court Justice Clarence Thomas indicated the court wanted to hear a case challenging the constitutionality of civil asset forfeiture.
“Instead of revising forfeiture practices in a manner to better protect Americans’ due process rights, the DOJ seems determined to lose in court before it changes its policies for the better,” Lee said in a statement.
The American Civil Liberties Union called the new policy “part of Sessions’ agenda to bring back the failed and racist War on Drugs.”
