In America, it is legal in most states for police to take and keep your stuff without ever convicting you for a crime. Now, Attorney General Jeff Sessions apparently wants to let police do this even more often.
Most states and federal law already allow what’s called “civil asset forfeiture.” This lets police seize someone’s property without proving the person was guilty of a crime; they just need probable cause to believe the assets were used or obtained in some kind of criminal activity, typically drug trafficking.
Police can then absorb the value of the property — be it cash, cars, guns, or something else — as profit, either through state programs or under a federal program known as equitable sharing, which lets local and state police get up to 80 percent of the value of what they seize as money for their departments. For police departments, this can end up a fairly profitable venture.
On Wednesday, Sessions signed an order to encourage law enforcement to use civil asset forfeiture more often, rescinding previous orders by President Barack Obama’s administration limiting the practice. The order includes some supposed safeguards, which ask law enforcement to be careful, make sure there is sufficient evidence of a crime, and more thoroughly document the evidence and probable cause justification.
“[W]e hope to issue this week a new directive on asset forfeiture — especially for drug traffickers,” Sessions said on Monday, hinting at the forthcoming order. “With care and professionalism, we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their crime. Adoptive forfeitures are appropriate as is sharing with our partners.”
Police already seize a lot of assets from people. A recent report from the inspector general at the Justice Department, for example, found that the Drug Enforcement Administration alone seized more than $3.2 billion in assets from 2007 to 2016.
But Sessions wants more. The order comes in sharp contrast to the moves of several states — led by Republicans and Democrats — and the Obama administration, which attempted to limit the use of civil forfeiture following reports of its frequent abuse by police departments.
Civil asset forfeiture is very frequently abused
Critics have long argued that civil forfeiture allows law enforcement to essentially police for profit, since many of the proceeds from seizures can go back to police departments. And while people can get their property back through court challenges, these cases can often be very expensive and take months or years.
Michael Sallah, Robert O’Harrow, and Steven Rich uncovered several instances for the Washington Post in which people were pulled over while driving with cash and had their money taken despite little to no proof of a crime. The suspects in these cases were only able to get their property back after lengthy, costly court battles in which they showed they weren’t guilty of anything.
I also previously covered the story of college student Charles Clarke, who was at the airport when police took his life savings of $11,000. Police said they smelled marijuana on Clarke’s bags — but they never proved the money was linked to crime, and Clarke provided documents that showed at least some of the money came from past jobs and government benefits. The case led to a lengthy court battle before the government finally returned his money — with interest.
Stories like Clarke’s have driven some states to enact reforms. For example, in New Mexico and North Carolina, a court must convict the suspect of a crime before the same judge or jury can consider whether seized property can be absorbed by the state. In Minnesota and Montana, meanwhile, a suspect must be convicted of a crime in court before the seized property can be absorbed by the state through separate litigation in civil court. And in California, the state requires a conviction for forfeiture — but only for financial seizures worth up to $40,000; a boat, airplane, or vehicle; and any real estate.
States’ limitations don’t entirely stop police from seizing someone’s property; cops can still do that with probable cause alone, and hold the property as evidence for trial.
But the government won’t be able to absorb the property and its proceeds without convicting the suspect of a crime. This limits police seizures in two ways: It forces cops to show the suspect was actually involved in a crime after the property is seized, and it can deter future unfounded seizures for profit, since police know they’ll need to prove a crime.
Still, the federal government and most states continue to allow civil forfeiture. The federal law in particular creates a big loophole, even in states that limit local and state police’s forfeiture practices. If local and state cops work through the federal program, they can still conduct forfeitures, and their police departments can keep as much as 80 percent of the proceeds — regardless of what state law says. Only a few states restrict local and state police from working with the federal government on forfeiture cases.
Sessions’s order attempts to limit the abuses by imposing supposed safeguards.
But the Institute for Justice, which opposes civil asset forfeiture, argued that the protections are insufficient, amounting “to little more than window dressing of an otherwise outrageous abuse of power”:
The supposed “safeguards” implemented by this policy directive offer little or no substantive protection to property owners as they depend primarily on self-policing rather than judicial oversight. Most amount to nothing more than a pledge to be more careful. For example, under this new policy, the Justice Department will continue to seek forfeiture of homes where the owner is not implicated in illegal activity, with the only “safeguard” being that the Department officials should proceed with particular caution. That offers no actual protection for innocent homeowners.
The result: In much of the country, police can legally take your property even if you never committed a crime.
“It’s ridiculous. I think it needs to change,” Clarke told me in 2015. “I don’t think the cops should be allowed to take somebody’s money if they haven’t committed any crime. We’re treating innocent people like criminals.”