Civil Asset Forfeiture takes a Turn: NMA E-Newsletter #449

Kentucky Senator Rand Paul recently wrote an editorial on civil asset forfeiture (CAF) and his opening paragraph says it all.

“Innocent until proven guilty” is the bedrock of America jurisprudence. Civil asset forfeiture, a legal process in which government confiscates your property without a guilty verdict, turns that justice on its head.

In mid-July, U.S. Attorney General Jeff Sessions announced that the Justice Department would now make it easier for local law enforcement to seize cash and property from crime suspects and reap the rewards. Sessions wants to increase the scope of CAF and reverse a 2015 ban on adoptive seizures, which occur when law enforcement officers circumvent state limitations by turning cash and property over to the federal law enforcement in exchange for up to 80 percent of the proceeds.

If the attorney general is successful, major damage will be done to the constitutional rights of individuals in the United States.

Civil asset forfeiture has quite a long history which probably started in medieval times. The modern U.S. version began in the 1970’s in an attempt to confiscate cash and property from drug lords. Somehow the practice has morphed into any alleged criminal’s property being fair game for government confiscation if law enforcement thinks that property (including cash) has been used in a crime, regardless of whether criminal charges have been filed. In order to get that property back, the owner has to petition civil court and prove that the property is unconnected to any criminal activity or other words, innocent.

The Fifth Amendment protects American’s due process but CAF allows law enforcement to take cash and property without first proving guilt. The US Supreme Court recently has ruled affirmatively for Fifth Amendment rights in several cases this year and for the critical doctrine of “Innocent until proven guilty.” In an entirely different case, Justice Clarence Thomas commented that CAF frequently targets the poor and other groups least able to defend themselves and their property in civil courts.

The Nevada Policy Research Institute released a report this month that showed two-thirds of forfeitures in Las Vegas were made in zip codes where the average poverty rate is 27 percent and the average nonwhite population is 42 percent.  According to the study, a little more than half of the forfeitures in Las Vegas involved assets valued below $1,000.

In a bid to end a class action lawsuit, the city of Philadelphia agreed last month to voluntarily stop using property and cash seized to fund both the District Attorney’s Office and the Police Department. Instead any asset seized will be used to fund drug treatment programs, drug-abuse prevention programs and to alleviate blight in communities besieged by the drug trade. Institute for Justice Attorney Milad Emam recently wrote in an op-ed, “As long as forfeiture proceeds can fund Pennsylvania law enforcement’s salaries and other benefits, forfeiture will continue to be out of control.” The Institute of Justice says they will continue their fight despite the city’s recent concession.

The Department of Justice, along with a few state and city governments, aim to degrade the constitutional rights of citizens. We mustn’t let them.

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