The Department of Justice in July announced a new federal policy that allows local and state police to seize cash and property from those who are suspected of crimes, even if criminal charges have not been filed.
The issue at stake is called asset forfeiture, and it has been roundly criticized across the country for years. It allows state and local law enforcement to take possession of money and property without a criminal conviction, or even an indictment in some cases.
The policy that was rolled out last month targets what is called adoptive forfeiture. This allows local police to go around restrictive state laws to seize property under the new federal law. The proceeds from the asset seizure then can be shared with federal law enforcement. This policy in the past has led to millions of dollars per year being shared with the federal government.
In 2015, former Attorney General Eric Holder banned state and local police from using federal laws to take cash and property without a warrant or criminal charges being filed. This law was called the Civil Asset Forfeiture Reform Act. In the last decade, there have been more than 55,000 cash and property seizures by thousands of local police agencies. That cash and property has been estimated at a worth of $3 billion, which then was then shared with federal law enforcement agencies.
According to a 2014 Washington Post investigation, state and local police had taken $2.5 billion from drivers and others without indictments or search warrants since 2001. The newspaper series showed that police would stop drivers for minor traffic violations, press them to consent to a search without a warrant and seize thousands in cash when there was no evidence of any breaking of laws.
In defense of the new federal policy, Deputy Attorney General Rod Rosenstein stated that mistakes will never be eliminated completely. But, he noted, that the new policy will position the federal government in a way to ensure that there are few cases of legitimate abuse. He also noted that the Justice Department would make it a high priority to follow up on any cases where law enforcement abuse is suspected.
Rosenstein claimed that the department would have more safeguards than before to ensure that police do not overstep their authority. All police departments will be mandated to give details to the Justice Department about what the probable cause was for the particular seizure. Federal officials also will have to inform property owners faster about the status of the seizure and their rights.
The deputy AG also added that the goal of the new federal policy is to provide the police with the power to fight crime, and especially drug abuse. The policy will allow the Justice Department to work with local law enforcement and prosecutors to ensure that when cash and property are seized legally, they will not be given back to criminals.
New Law Has Major Changes From the Past
The federal law being enacted will require police to provide great detail about any cash seizure, and what the probable cause was for the seizure. The Justice Department also must decide faster whether to get involved in a local seizure. The department also must inform the party of their right sand states of property within 45 days.
Another major change is that it is harder for the police to seize amounts less than $10,000 unless they have a warrant from a state judge. Or, they must have made an arrest related to the seizure, or have taken possession of illegal items, such as drugs. Or, the person must have confessed to a crime. Without at least one of these conditions, the police must have the approval of a federal prosecutor to seize the property.
The previous law set the minimum seizure at $5000, and the old law did not usually require a federal prosecutor to sign off.
Sessions Support a Sign of Get-Tough-On-Crime Agenda
Attorney General Sessions is in support of the new cash and property seizure law. This keeps with his tough-on-crime beliefs, and aligns with his view that the Department of Justice should be helping local law enforcement deal with violent crime. Police departments often use the cash and asset seizures to pay for department expenses, and many believed that Holder’s policy prevented them from getting necessary funding to fight crime.
When Sessions announced the rollback of the old law, many district attorneys in the audience applauded.
But the embrace of continued asset forfeiture is following a bipartisan effort to reform the controversial practice. More states are making their own laws governing asset forfeiture. In California, Rep. Darrell Issa stated that he has backed legislation to regulate asset forfeiture tightly. He stated that he thinks the move by Sessions is moving backwards on the issue.
Issa stated that while he is pleased there are more safeguards in place, the new law will expand the use of civil asset forfeiture. Criminals should never be able to keep money and property from their illegal activity, he said, but Americans also should not give up their due process rights.
As of 2014, there were 20 states that had established restrictions on civil asset forfeiture. These states at least required a criminal conviction, or increased the requirements for burden of proof by the government.
There is no doubt that civil asset forfeiture will continue to be controversial, especially if its use will expand under the Sessions Justice Department. In the past, there have been numerous cases across the country where relatively small amounts of cash and property have been seized from people with no criminal records.
Hopefully, the new law will reduce the number of these questionable asset seizures. If not, citizens have the right to file a lawsuit against the law enforcement agency responsible for the seizure. There have been cases where people had $10,000 in cash seized in their car that was legally won at a casino. The new law may prevent these types of cases from happening so often.