In recent years, state governments have acted to safeguard Americans’ property rights, preventing the taking of private property without due process of law. As we have often discussed in this space, they have been curbing or abolishing the practice of civil forfeiture, by which government takes the property of people who are often never charged with a crime, let alone convicted of one, solely on the basis of suspicion that their money or property is involved in criminal activity.
Unfortunately, Attorney General Jeff Sessions is now trying to undo the states’ progress.
Sessions issued a directive recently making clear his intention to embrace a policy of Barack Obama’s Justice Department, which more than doubled federal forfeitures in its first five years. But he’s actually going further than that, rolling back even the modest restrictions on forfeiture that Obama’s administration had created in 2015.
Not only is Sessions encouraging more of it at the federal level, but his Justice Department will also be encouraging local law enforcement to circumvent state laws that have limited or abolished civil forfeiture. Under current federal law, local law enforcement can often circumvent state law by turning cases into joint federal investigations. The Justice Department colludes in this with its so-called Equitable Sharing program, by which the locals get paid back up to 80 percent of whatever is forfeited. Law enforcement and local governments have a perverse incentive to use forfeiture in many jurisdictions because the forfeited money often goes straight into the police budget.
There is a double irony in the fact that state legislatures across America have been moving in the opposite (and correct) direction on this issue by limiting or banning civil forfeiture. Not only has the heavy lifting on reform been mostly done by members of Sessions’ own conservative wing of his own Republican party, but it is also being done on the basis of a time-honored constitutional principle. Federalism, especially the Tenth Amendment’s reservation of powers to the states, is something conservatives supposedly hold dear. And it goes without saying that property rights fall into this same category.
Now Sessions, ostensibly a conservative, is trying to undermine state governing prerogatives in favor of a bigger and more assertive federal power against individual property rights.
The justification for Sessions’ move is a crackdown on drug trafficking. And such a crackdown seems perfectly appropriate, especially in this era of the opioid epidemic. But this does not mean it is appropriate or lawful to do so at the expense of innocent Americans’ property rights. Civil forfeiture is very frequently used in contexts that have little or nothing to do with combating the scourge of drugs, and in many cases the federal government uses it against people whose sole crime is to use or carry a lot of cash.
At least one justice on the Supreme Court, Clarence Thomas, has already expressed deep reservations about civil forfeiture. And there is still a serious chance that a timely case on this issue will end up before all nine justices.
But, in the meantime, Congress needs to act. Key members in both houses have, up to now, given hints that there exists a willingness to act on this issue. But Sessions has just forced their hand, and they must realize this right now. Congress must act quickly to reform civil forfeiture at the federal level and limit the use of Equitable Sharing to cases where criminals are ultimately convicted of a crime. In doing so, they will not only be empowering the states, but also protecting property rights from a nightmarish government practice that has victimized far too many innocents.
