WASHINGTON – A bipartisan group of senators last week sent a letter to Attorney General Jeff Sessions asking that the Justice Department reform what they characterized as the profit-driven practice of civil asset forfeiture.
Asset forfeiture is the controversial act in which police seize property or assets – including cars, homes and bank accounts — from individuals suspected of crime or illegal activity without necessarily making arrests or filing charges. Sen. Mike Lee (R-Utah), who co-authored the letter, said in an interview with PJM on Tuesday that the practice enables easy asset seizure, but levies a heavy burden on innocent individuals trying to reclaim property.
Lee voiced support for the FAIR Act, which Sen. Rand Paul (R-Ky.) and Rep. Tim Walberg (R-Mich.) reintroduced this session. The legislation would require federal agencies to verify that property or assets are tied to criminal activity, while also directing seized funds to the Treasury, a caveat that the lawmakers believe eliminates the profit incentive.
The legislation “would dramatically pare down abuse” of civil forfeiture practices, Lee said.
Sens. Tom Udall (D-N.M.), Martin Heinrich (D-N.M.), Mike Crapo (R-Idaho) and Angus King (I-Maine) joined Lee and Paul in signing the letter to Sessions. The lawmakers cited Leonard v. Texas, a Supreme Court case in which Justice Clarence Thomas excoriated civil asset forfeiture, claiming that the practice has led to “egregious and well-chronicled abuses.”
In April 2013, James Leonard was stopped for a traffic violation along a stretch of U.S. Highway 59 in Texas, a notorious drug route. A search of the vehicle turned up a safe in the trunk. Leonard and his passenger, Nicosa Kane, offered conflicting stories about what was inside the safe, so police obtained a warrant, which led to the discovery of about $200,000 and a bill of sale for a Pennsylvania home. Police proceeded with civil forfeiture, claiming that the money was tied to narcotic sales, despite Kane’s insistence that the money was from the sale of the Pennsylvania home.
Carla Howell, political director for the National Libertarian Party, said in an interview last week that civil asset forfeiture has resulted in innocent people having to prove their innocence instead of the government having to prove guilt. She said that in most cases, the legal cost of recovering the property runs higher than the value of the property itself, forcing individuals to take the loss even if there hasn’t been any wrongdoing. Police, she said, should need a higher level of evidence to seize property. According to the party, police seize $5 billion in assets annually through the practice.
“As a matter of simple justice and the American way, it’s wrong, and it’s further perverted by the fact that you have this policing for profit,” Howell said, adding that she’s not “holding her breath” in anticipation of reform at the Justice Department. “For Sessions not to go along with this request (would really be) a slap in the face of both the American justice system and the American people.”
She noted that reversal of the practice is gaining momentum at the state level. New Mexico, which has outright repealed civil asset forfeiture practices, has gone the furthest, while 16 other states have followed suit to varying degrees.
Scott G. Erickson, a former police officer in California and founder of the nonprofit Americans in Support of Law Enforcement, wrote in an email Monday about the positive aspects of civil asset forfeiture.
“It can deprive criminal organizations of the assets needed to further their criminal enterprise while simultaneously augmenting the law enforcement community’s ability to address the underlying criminal behavior,” he wrote. “The most obvious examples are in the fight against the illicit drug trade or terrorism.”
Lee said that he recognizes the positive aspects of civil asset forfeiture, but the same argument can be made for any practice that makes “life easier for government.”
“Of course the whole idea of having a Constitution is to limit government, and make it more difficult for government to do things to people,” Lee said.
Kanya A. Bennett, a lobbyist with the ACLU, in an interview last week voiced concerns about due process tied to civil asset forfeiture. She noted that minority communities are more subject to the practice.
“The communities that are most marginalized are communities that are going to be subjected to a greater, to a more disproportionate degree, to this practice, so the communities that are over-policed, generally, are going to be the communities subjected to forfeiture,” she said.