Updated at 4:25 p.m. ET
Attorney General Jeff Sessions rolled back a series of Obama-era curbs on civil-asset forfeiture on Wednesday, strengthening the federal government’s power to seize cash and property from Americans without first bringing criminal charges against them.
In a statement announcing the Justice Department’s new policy directive, Sessions described civil forfeiture as a “key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed.” He also cast it as part of his larger push to imprint the president’s hardline stance on criminal-justice matters onto the federal government’s tactics against crime.
“President Trump has directed this Department of Justice to reduce crime in this country, and we will use every lawful tool that we have to do that,” he said at a gathering of law-enforcement officials on Wednesday. “We will continue to encourage civil-asset forfeiture whenever appropriate in order to hit organized crime in the wallet.”
The directive revives the Justice Department’s Equitable Sharing Program, a controversial process through which state and local police agencies can seize assets, then transfer those seizures to federal control. In doing so, local agencies can skirt some state-level regulations limiting forfeitures. Under the program, the federal government pools the funds derived from the assets and sends 80 percent of them back to the state or local department itself, sometimes evading state laws that say seized assets should go into a state’s general fund.
Civil forfeiture has existed in some form since the colonial era, although most of the current laws date to the War on Drugs’ heyday in the 1980s. Law-enforcement officials like Sessions defend modern civil forfeiture as a way to limit the resources of drug cartels and organized-crime groups. It’s also a lucrative tactic for law-enforcement agencies in an era of tight budgets: A Justice Department inspector general’s report in April found that federal forfeiture programs had taken in almost $28 billion over the past decade, and The Washington Post reported that civil-forfeiture seizures nationwide in 2015 surpassed the collective losses from all burglaries that same year.
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In its report, the inspector general’s office also raised concerns about how federal agencies take funds, after it found almost half of the Drug Enforcement Agency’s seizures in a random sample weren’t tied to any broader law-enforcement purpose. “When seizure and administrative forfeitures do not ultimately advance an investigation or prosecution, law enforcement creates the appearance, and risks the reality, that it is more interested in seizing and forfeiting cash than advancing an investigation or prosecution,” the report concluded.
The practice has been under heavy scrutiny in recent years amid high-profile reports of abuses by law-enforcement officials and growing concerns about its constitutionality. In 2015, Sessions’s predecessor Eric Holder issued a set of modest policy changes that scaled back equitable-sharing proceeds if they were obtained without warrants or criminal charges. Sessions rescinded those policies, but, in a rare nod to critics, imposed some new safeguards on the practice by speeding up notification for owners and requiring more information about the local or state agency’s probable cause for seizing assets.
Those changes did little to dissuade his dissenters on Wednesday. Sessions’s move defied a broad, durable consensus against civil forfeiture on both the left and the right in recent years. Kanya Bennett, a legislative counsel for the ACLU, noted that some polls have shown 80 percent of Americans oppose the practice. “Civil-asset forfeiture is tantamount to policing for profit, generating millions of dollars annually that the agencies get to keep,” she said in a statement. “This is part of Sessions’s agenda to bring back the failed and racist War on Drugs, where this and other ineffective, unjust, and un-American practices were widely used.”
Libertarian and conservative groups also condemned the new Justice Department policy in strong terms. “The only safeguard to protect Americans from civil forfeiture is to eliminate its use altogether,” said Darpana Sheth, a senior attorney at the libertarian nonprofit law firm Institute for Justice, in a statement. “The Department of Justice’s supposed safeguards amount to little more than window dressing of an otherwise outrageous abuse of power.”
Jason Pye, the vice president for legislative affairs at FreedomWorks, a high-profile conservative advocacy organization, called on Congress to “rein in our attorney general” in the wake of Sessions’s announcement. “By expanding government power to take property without appropriate due process, even when state laws don’t allow it, Sessions is signaling he answers to no one,” Pye said in a statement.
Lawmakers joined in as well. “This is a troubling decision for the due-process protections afforded to us under the Fourth Amendment as well as the growing consensus we’ve seen nationwide on this issue,” California Representative Darrell Issa, a conservative Republican, said. “Criminals shouldn’t be able to keep the proceeds of their crime, but innocent Americans shouldn’t lose their right to due process, or their private property rights, in order to make that happen.”
Others were blunter about its constitutionality. “Instead of revising forfeiture practices in a manner to better protect Americans’ due-process rights, the DOJ seems determined to lose in court before it changes its policies for the better,” concluded Republican Senator Mike Lee of Utah. “Civil-asset forfeiture is unjust and unconstitutional,” Republican Representative Justin Amash of Michigan tweeted. “It’s a big-government scheme to take people’s property without due process. End it.”
A ruling on civil forfeiture could be on the horizon. Justice Clarence Thomas strongly suggested in April that he thought current civil-forfeiture policies could be unconstitutional. “Whether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail,” he wrote in a statement on the Court’s decision not to take up a case, Leonard v. Texas, challenging the practice.
Thomas ultimately agreed with his colleagues on procedural grounds. But he took the opportunity to list his concerns about civil forfeiture in general. “This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses,” he noted, adding that law-enforcement agencies “frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.”
Justices typically avoid declaring their positions in cases and issues before they hear them in court, but opinions like Thomas’s are often taken as a not-so-subtle signal about their true feelings on a subject. His words, as well as the increasingly vocal resistance to civil forfeiture in Congress, could indicate that whatever moves Sessions makes to expand the practice are living on borrowed time.