Joe Biden’s decades-old support for tough-on-crime measures like the 1994 crime bill now earns him wrath from those among the far Left. Tangential to that is the beef that civil libertarians have with the former vice president and 36-year Delaware senator over one of their pet issues: civil asset forfeiture.
Civil asset forfeiture, a legal tool used by law enforcement to seize property that has been involved with a crime even if the owner of the property did not take part in a crime, is a legal area heavily focused on by libertarian groups.
The worst horror stories, like Los Angeles police seizing and never returning $10,000 in cash from a taco truck owner despite not arresting him or charging him with a crime, inspire outrage from the general public about the practice. As a result, legal action and reform initiatives to change or remove asset forfeiture laws have been successful in recent years.
But Biden advocated for the expansion of federal civil asset forfeiture in the 1980s — work that, to civil libertarians, is an implacable stain on his record.
Activists who support Libertarian Party nominee Jo Jorgensen posted tweets pointing out the presumptive Democratic presidential nominee’s connection to the policy.
A blog post by Chris Calton published in the libertarian Mises Institute and the libertarian Foundation for Economic Education website called Biden “the architect of the government’s asset forfeiture program.” In the libertarian Reason magazine, a December article criticizing Biden’s bipartisan work in the Senate said that a bill he worked on “effectively created the modern civil asset forfeiture system.”
Early in his Senate career, Biden was concerned about drug trafficking and believed that the federal government was not using enough of its power from the Racketeer Influenced and Corrupt Organizations Act to halt criminal activities through seizing property.
Biden commissioned a 1981 government report on asset forfeiture and why it was not more widely used to combat drug crime.
“Even though legislation designed to attack these [drug trafficking] profits through asset forfeiture was enacted more than a decade ago, forfeiture of criminal assets has been minuscule,” the report said. “The primary reason for the limited use of asset forfeiture has been the lack of leadership by the Department of Justice.”
Biden spent the next several years pushing for reforms to RICO that expanded civil asset forfeiture. In 1981, he was an expert witness for a House Judiciary Committee hearing on a House bill that aimed to do so, and he sponsored a bill in 1984 called the Comprehensive Forfeiture Act.
Reforms that expanded asset forfeiture were enacted as part of the Comprehensive Crime Control Act of 1984.
Later, while arguing in favor of the Violent Crime Control Act of 1991, Biden touted the civil asset forfeiture expansion.
“We changed the law so that if you are arrested and you are drug dealers, under our forfeiture statutes, you can — the government can take everything you own,” he said on the Senate floor in 1991. “Everything from your car to your house, your bank account. Not merely what they confiscate in terms of the dollars from the transaction that you just got caught engaging in.”
Critics say that the 1984 act normalized and encouraged local law enforcement to use civil asset forfeiture to fund their own departments and interests rather than as a tool for mitigating crime.
“The most significant shift in forfeiture law contained in the 1984 act, however, was the new ability of law enforcement agencies to retain the proceeds of successful forfeitures,” said John Malcolm, a vice president and scholar at the conservative Heritage Foundation. “Whereas prior law had directed forfeiture proceeds be deposited into the General Fund, the 1984 act redirected these funds into a new account, the Assets Forfeiture Fund, and empowered federal law enforcement agencies to spend this money outside the normal appropriations process.”
Biden could have some relief from criticism due to his tendency to attach himself to popular Obama administration initiatives. Under President Barack Obama, the Department of Justice rolled back its use of civil asset forfeiture.
Republicans and President Trump’s campaign are happy to amplify civil libertarian criticism of Biden. But Trump is not a champion for those who are concerned about civil asset forfeiture either. Former Attorney General Jeff Sessions rolled back the Obama-era reforms, and some Republicans floated the idea of using funds from asset forfeiture to build a wall along the U.S.-Mexico border.
