Biggest Drug War Victory? Courts, Governors Tiring of Asset Forfeiture

If cops weren’t allowed to seize your property without a trial—and, in many cases, without even accusing you of a crime—law enforcement in America would be near unrecognizable. For instance, the DEA would be $4 billion poorer.

As the Justice Department’s inspector general noted in March, DEA agents have seized $4 billion in cash over the last decade from travelers under the pretext of drug-related asset forfeiture. In more than 81 percent of the cases reviewed, there were no criminal charges filed, as Reason reported.

Investigations often began after innocuous acts that are not criminal: purchasing a last-minute or one-way ticket, traveling without checked luggage, or flying to a “known source city for drug trafficking.” Conveniently, that would include nearly every major city in America, according to federal drug agents.

So: Cops can search your luggage, for any reason, if you fly anywhere. If you have cash, they can take it—and it’s up to you to prove, in court, that you earned it all legitimately.

In theory, asset forfeiture is meant to allow law enforcement to easily punish drug dealers like the cocaine kingpins of 1980s Miami. Let’s say you had a tough time tying the tycoon without any appreciable means of legitimate income to street-level cocaine dealing. No problem—you can take his ill-gotten mansion!

Prosecutors also claim asset-forfeiture is an indispensable tool in pursuing public corruption cases. 

But as has been reported time and again, asset forfeiture laws are abused to punish normal Americans and take their property. Since at least some of the forfeited cash goes directly into the budgets of local law enforcement, they’re a prime opportunity for abuse by police departments in search of cool gear.

A recent case in Philadelphia outlines just how outrageous the abuses can be. For almost a decade, prosecutors there have been working to seize the row-home of a retired septuagenarian grandmother, after her son—who lived at the home—was convicted of selling less than $300 worth of marijuana.

For these reasons, asset forfeiture is vastly unpopular—so unpopular that lawmakers and governors have proven willing to piss off prosecutors by reforming it.

In April, Arizona Governor Doug Ducey signed legislation requiring prosecutors to provide evidence that an asset was gleaned from drug sales before it can be forfeited. Last week, Colorado Governor John Hickenlooper signed into law an asset-forfeiture reform bill that limits the forfeiture proceeds local law enforcement can receive from the federal government.

And, as the Drug Policy Alliance’s legal director Theshia Naidoo recently observed, federal courts are also tiring of the asset-forfeiture hustle.

The Supreme Court recently heard two cases that dealt with asset forfeiture reform. In both instances, justices held the line against forfeiture-happy government attorneys.

In one case, two brothers convicted of conspiracy to traffic methamphetamine were ordered to forfeit $200,000. One brother owned a store and profited from the sale of the drugs; the other brother merely worked at the store and didn’t profit.

Under current statute, liability for asset forfeitures can be applied equally to all participants in a conspiracy—even if one participant profited greatly, and another barely profited at all. But according to the Supreme Court’s ruling, assets can be seized only if they were acquired via criminal conduct.

In another case, the famously reticent conservative Justice Clarence Thomas openly questioned whether asset-forfeiture laws violate basic constitutional protections of due process.

“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,” said Thomas, according to the Drug Policy Alliance.

Thomas, who has in the past argued against affirmative-action, also recognized how asset forfeiture unfairly burdens poor people. You see, poor people are most often the subject of asset-forfeiture proceedings, not obscenely rich Scarface wannabees.

“These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings,” he said. “Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”

The case, Leonard vs. Texas, was not heard by the court on procedural grounds—the petitioner had not raised due-process concerns in lower courts—but for a conservative justice to cast doubt on asset forfeiture’s constitutional legitimacy is one of the strongest signs yet that its day in America may be coming to an end.

For that to happen, the court may have to challenge President Donald Trump.

In a February meeting with local sheriffs, Trump “joked” about destroying the career of a Texas legislator working on asset-forfeiture reform—a jest that is ominously unfunny in the light of Trump’s apparent willingness to commit obstruction of justice in order to shut down the investigation into his campaign’s ties with Russia. Undermining Obama-era criminal justice reform, which he and Attorney General Jeff Sessions have promised to do, is a much easier lift.

But this is Donald Trump, who has thus far had his ass kicked—and roundly—by the courts.

And asset forfeiture is universally unpopular among the people who voted him in. It will take a while yet before the practice is ended, but reforms are already well underway—and in the Trump era.