U.S. Attorney General Jeff Sessions, in a disturbing move that should be abandoned, has called for wider use of civil forfeiture, which allows law enforcement to confiscate cash and property without obtaining a conviction or, in some cases, even filing a criminal charge.
At a recent appearance in Minneapolis, Sessions said that “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. It weakens the criminals and the cartels.”
But it also has paved the way for abuses that have been catalogued across the country. Minnesota rightly moved years ago to at least curb the practice. In 2014, it began requiring criminal conviction as part of drug forfeitures. In the last legislative session, lawmakers enacted further restrictions. Vehicle owners who had their vehicles seized as a result of someone else’s drunken driving now must be given an opportunity to petition for their return.
Those reforms had their roots in the ugly abuses of the infamous Metro Gang Strike Force, an elite unit charged with investigating gangs that also flagrantly abused its authority to seize assets. Officers took assets large and small — cash, cars, blenders, class rings, high-end electronics, even autographed baseball hats. Seized property went missing from evidence rooms, some of it sold at rock-bottom prices to officers and their friends and family members.
Forfeitures have been used to pump up law enforcement budgets that admittedly often are skimpy. But in doing so it creates perverse incentives that require strict safeguards. Sessions’ directive does the opposite, going back to a looser standard. Gov. Mark Dayton’s office says the governor opposes the move, primarily because it could open the door for law enforcement to make use of weaker federal laws.
While Sessions has framed seizures as a way to dry up the revenue of major drug rings, the reality is that seizure laws more often are used against much smaller fry. Earlier this year, U.S. Supreme Court Justice Clarence Thomas wrote that “forfeiture operations frequently target the poor and other groups least able to defend their interests. This system, where police can seize property with limited judicial oversight and retain it for their own use, has led to egregious and well-documented abuses.”
Even with reforms, state forfeitures were up in Minnesota last year, with 7,048 seizures from 320 agencies in 2016, compared with 6,722 seizures in 2015. The bulk, by far, were vehicles, typically the result of drug or drunken-driving charges. Far from the drug kingpins Sessions talks of, nearly half the seizures in Minnesota were valued at under $500.
Civil forfeiture upends the presumption of innocence that is the foundation of our legal system. Instead the burden of proof falls upon the property owner, who has no guarantee of legal representation and who typically must act within strict time constraints or risk forfeiting the property by default. The Fifth Amendment is clear on the protections owed Americans: “No person shall be … deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation.”
Former Justice Department directors of the Asset Forfeiture Office have gone so far as to say the practice should end outright. John Yoder and Brad Cates, directors of the office during the 1980s, have written that the program “began with good intentions but now, having failed in both purpose and execution, it should be abolished.” It has, they said, become “an evil itself, with the corruption it engendered among government and law enforcement coming to clearly outweigh any benefits.”
Sessions is wrong to encourage its expanded use, and state and local law enforcement agencies should continue to act within the bounds of Minnesota’s stricter laws.