Sessions' New Order Lets Police Circumvent State Laws on Civil Asset Forfeiture

State politicians on both sides of the aisle have increasingly worked to curb the practice. Now, the attorney general may have made their efforts pointless.
by | July 19, 2017
Attorney General Jeff Sessions waits before speaking to federal, state and local law enforcement officials. (AP/John Locher)

Attorney General Jeff Sessions signed an order on Wednesday reversing the Obama administration's limits on civil asset forfeiture, a widely criticized practice in which law enforcement officers seize cash and property from citizens who have not been charged with crimes.

The policy change comes as a number of states -- both red and blue -- have clamped down on civil forfeiture abuses, and it will allow local police departments to circumvent state laws that restrict the practice.

"Civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed, and it weakens the criminals and the cartels," said Sessions when he announced the order to a group of law enforcement officials. "In departments across this country, funds that were once used to take lives are now being used to save lives."

In most states and cities, police departments get to keep most or all of the money and property they seize, which has led some departments to depend on forfeitures as a critical source of funding.

Civil forfeiture has critics on both the right and the left, largely because of the low burden of proof required to seize a person’s property.

“The law doesn’t require you to be charged, much less convicted, of any crime [to have your possessions taken],” says Darpana Sheth, a senior attorney at the Institute for Justice, a libertarian public interest law firm that represents civil forfeiture clients. “And because it’s a civil proceeding, people are not afforded the right to counsel like they would be in a criminal proceeding.”

That means people have to pay for an attorney to represent them while they try to regain their possessions -- an expense that often exceeds the value of the confiscated goods in the first place.

“If [the police] take $500 from you during a traffic stop, the legal fees and everything turn out to be more than what you already lost,” says Louis Rulli, a clinical law professor at the University of Pennsylvania and a leading forfeiture expert.

Over the last decade, shocking stories of individual and systemic abuse have made national headlines.

In 2016, Oklahoma police stopped a Christian band manager for a broken tail light and ended up seizing $53,000 in concert revenue and charity donations to an orphanage. The Washington Post reported a lengthy exposé on police taking hundreds of millions of dollars from motorists never charged with crimes. In Tenaha, Texas, authorities systematically confiscated motorists' property and threatened them with criminal charges unless they signed waivers giving up their possessions (the department later used the money to buy, among other things, a popcorn machine).

The potential for abuse has led several states to rein in police power to seize property.

In the last three years, 24 states have comprehensively reformed their forfeiture laws, according to Sheth. As of July 10, when Connecticut Gov. Dannel Malloy signed H.B. 8146, 14 states require a criminal conviction before seized assets can be legally forfeited to authorities (if no conviction results, the assets must be returned to their owner).

Several states have other types of restrictions -- some ban the use of forfeited assets for law enforcement services and reroute the money to other public services, thereby eliminating the profit motive some say leads to abuse of the practice. (For a specific list of individual state policies, visit the Institute of Justice’s interactive map.)

But Sessions' order gives officers a way to bypass state restrictions.

It revives a program called Equitable Sharing or “adoptive forfeiture,” which allows local law enforcement to process forfeiture cases under federal statute and “share” the assets with federal authorities. In practice, the federal government sends up to 80 percent of the assets right back to local departments, effectively allowing them to get around stricter state laws, says Rulli. Eric Holder, Obama's attorney general, eliminated adoptive forfeiture except in rare cases.

“Sessions is calling [adoptive forfeiture] a ‘partnership’ between the federal government and states,” says Rulli, “but in fact, it’s an attack on federalism and the ability of states to decide for themselves how they should handle this [issue].”

Rulli and Sheth agree that Sessions is moving against a growing tide of politicians and public officials on both sides of the aisle who believe civil forfeiture is a blatant abuse of power.

Earlier this year, U.S. Supreme Court Justice Clarence Thomas -- one of the most conservative members of the court -- attacked the practice, writing that it “has led to egregious and well-chronicled abuses.” Several bipartisan bills have been introduced in Congress to reform federal civil forfeiture laws, at least one of which would eliminate adoptive forfeitures.

“[Sessions’] new directive shows the incredible importance of Congress taking immediate action and passing comprehensive bills to reform forfeiture” and prevent local departments from circumventing state laws, says Sheth.

In the meantime, Sheth suggests states should prohibit law enforcement officers in their state from participating in the Equitable Sharing Program.

“This new directive bucks the trend of where states have been going,” she says. “It appears that everyone but the Justice Department understands the need for reform.”