This op-ed was originally published at The Hill on September 2, 2017.
Next week, the House of Representatives will consider an appropriations bill, H.R. 3354, which will authorize spending for the Department of Justice for the upcoming fiscal year. Some members, Republican and Democratic alike, have submitted an amendment to the bill that would defund the directive issued by Attorney General Jeff Sessions to ramp up the use of civil asset forfeiture.
Sessions is a vocal advocate of civil asset forfeiture, the process by which local law enforcement can permanently seize property or money that is suspected to have a connection to a crime. During an April 2015 Senate Judiciary Committee hearing, then-Sen. Sessions was less than sympathetic toward a witness, Russ Caswell, whose hotel was wrongly seized when local law enforcement claimed that it had facilitated illicit activity.
Sessions read from letters from law enforcement officials in support of forfeiture while addressing Caswell and defending the pernicious practice, which is often abused. He downplayed the instances in which the legitimately owned property of innocent people — who were never arrested, charged or convicted of any wrongdoing — was seized by law enforcement, who, in most states and at the federal level, can keep all or part of the proceeds from forfeiture.
In January 2015, the Department of Justice made an administrative change related to civil asset forfeiture under Attorney General Eric Holder. The changes were related to adoptive seizures through which a state or local law enforcement agency can allow a federal agency to adopt seized assets and subject them to forfeiture under federal law. Adoptive seizures represent a small share of federal forfeiture changes, but conservatives, progressives, and libertarians applauded the change.
States, too, have taken the initiative to reform their civil asset forfeiture laws. According to the Institute for Justice, 24 states and the District of Columbia have reformed their forfeiture laws. Fourteen states — including Iowa, New Mexico, and Ohio — require a criminal conviction in most or all instances. Others like Arizona, Michigan, and Pennsylvania have increased evidentiary standards to the highest in civil court, clear and convincing evidence.
Several states have placed restrictions on adoptive seizures, prohibiting the transfer of seized property to the federal government entirely or limiting unless the total value exceeds a specific, high dollar amount. This prevents law enforcement from circumventing protective state forfeiture law. The federal government’s forfeiture law has a low evidentiary standard, a preponderance of the evidence, and law enforcement can receive up to 80 percent of the proceeds from permanently seized property.
Last month, Sessions unveiled a directive to undo the administrative changes put in place by Holder limiting the use of adoptive seizures. Although there were some safeguards in Sessions’ directive, it was largely out of step with wave of reforms seen at the state level and will only serve to legitimize forfeiture.
Sessions was criticized for the directive. “Back in May I encouraged the Department of Justice to review its policies on civil asset forfeiture in light of increasing indications from the Supreme Court that this practice is constitutionally suspect,” said Sen. Mike Lee (R-Utah). “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.”
Similarly, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) noted that adoptive seizures “have created perverse incentives in the past that jeopardized the rights of law abiding citizens.”
Thankfully, four amendments have been submitted to the House Rules Committee for consideration that would defund Sessions’ directive. It’s not clear which amendment if any will be considered when the consolidated appropriations bill, H.R. 3354, reaches the House floor likely late next week.
Reps. Justin Amash (R-Mich.) and Warren Davidson (R-Ohio) have submitted separate amendments that would prohibit the Department of Justice from using funds for adoptive seizures. Two bipartisan amendments, one submitted by Reps. Jamie Raskin (D-Md.) and Jim Sensenbrenner (R-Wis.) and another by Rep. Tim Walberg (R-Mich.) and Steve Cohen (D-Tenn.), would prevent funding from being used to implement Sessions’ directive.
The Amash and Davidson amendments are more comprehensive and are not limited to Sessions’ directive. In fact, these amendments would leave the minor safeguards provided under Sessions’ changes in place. The bipartisan amendments aren’t as comprehensive, although they’re still better than the status quo.
Still, while these amendments are a step in the right direction, Congress will eventually have to settle the concerns over civil asset forfeiture. Legislation has been introduced to increase the standard at the federal level to clear and convincing evidence and provide more protections for property owners who contest a seizure in federal court.
Unfortunately, these bills — Rep. Walberg and Sen. Rand Paul’s (R-Ky.) Fifth Amendment Integrity Restoration (FAIR) Act and Rep. Sensenbrenner’s DUE PROCESS Act — are awaiting action in their respective committees, and there’s no guarantee of action.
The best way to keep Sessions and civil asset forfeiture in check is for Congress to pass comprehensive legislation; however, for now these amendments offer the best path forward.
Jason Pye is the vice president of legislative affairs for FreedomWorks, a grassroots service center dedicated to helping activists fight for lower taxes, less government, and more freedom.