Forfeiture Reborn?

Whether Jefferson Beauregard Sessions of Alabama remains as U.S. attorney general is a continuing mystery (at least as of this writing). But on July 17, Sessions did indeed do something that calls into question his judgment and basic fairness.

As Trump administration policy, he embraced a legal doctrine that sanctions official police plunder of private property, known as “civil forfeiture.”

At a time when forfeiture is under serious attack by politicians and even U.S. Supreme Court Justice Clarence Thomas, who recently questioned its constitutionality, Sessions’ decision prompted a rare bipartisan outcry. In a 2015 Cato Institute/YouGov survey of 2,000 Americans, 84% opposed civil asset forfeiture. In a poll taken just after Sessions’ announcement, 59% opposed. The announcement is in sharp contrast to several states, led by both Republicans and Democrats, which attempted to limit the use of civil forfeiture.

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Forfeiture is one of the most serious assaults on what remains of private property rights in America today.

Between 1985 and 1993, the U.S. Department of Justice alone seized assets worth $3.2 billion. State and local police grabbed billions more. And the looting goes on: U.S. law enforcement has seized over $1 billion annually since 2009.

This centuries-old English common law doctrine has allowed American police to confiscate billions of dollars’ worth of private property from hundreds of thousands of innocent citizens. In 85% of cases, property is taken even though the owner is never charged with a crime. What’s worse, there is a built-in conflict of interest: Police agencies profit because they keep seized funds and property to use as they please, a rich incentive to push forfeiture.

Financing the Failed War on Drugs

Forfeiture was one of the politicians’ opening “do something” salvos in the failed “war on drugs.”

Ever since President Richard Nixon declared a war on drugs in the 1970s, the government has spent nearly $1 trillion on the still-unsolved drug problem, mostly for law enforcement. Made part of U.S. criminal law starting with the Bank Secrecy Act of 1970, forfeiture was a supposed tool against organized crime and drugs. Now it covers over 400 U.S. crimes, from traffic stops to “structuring” (making many bank transactions under $10,000 to avoid reporting requirements).

As Ted Bauman has written, asset forfeiture hasn’t lived up to its promise. Instead, it’s become a multibillion-dollar scam, targeting innocent people who can’t afford to challenge the cops. Only a fraction of cases ever make it to court; a civil suit seeking redress takes years and costs thousands in legal fees.

By 2000, abuses of forfeiture had become a national scandal. The late U.S. Rep. Henry Hyde led Congress in the adoption of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA). However, in the political panic in 2001 after the 9/11 terrorist attacks, the Patriot Act, drafted in secret and adopted by Congress without being read, seriously weakened Hyde’s CAFRA reforms.

Protect Yourself

Brenda Grantland of Mill Valley, California, is one of the leading anti-forfeiture attorneys in America. She provides a complete, detailed description of Sessions’ new forfeiture policy here. Brenda is a founder of the major reform organization Forfeiture Endangers American Rights (FEAR). I worked with her to adopt the 2000 CAFRA Act, and served on the FEAR board.

Brenda’s latest e-book, Asset Forfeiture: What to Do When Police Seize Your Property, explains how you can protect yourself against police confiscation of your house, car, business and bank accounts. I recommend it highly. At checkout, you are eligible for a special $5 discount when you use the coupon code "liberty17" through September 30, 2017.