Nearly lost in the miasma of secret anti-marijuana meetings in Colorado and Donald Trump’s very public wish for Attorney General Jeff Sessions to go far, far away and never come back is Sessions’s updated plan, released Wednesday, to allow American police to more freely and easily relieve American citizens of their property—even if they have never committed a crime.
Since the mid-1980s, police and prosecutors have been able to seize cash and property, without convicting or even charging the rightful owner with a crime, under a process called “civil asset forfeiture.” (The process’s genesis is in colonial America, but the method as we know it today began 30 years ago.)
Property can be sold and cash can be deposited directly into police department’s bank account—and it’s entirely on the erstwhile owner to prove that every last cent was earned legally. If the cash came from the sale of property that wasn’t sufficiently documented, or for wage work without a W-2, too bad—that cash is now the government’s, and good luck getting it back.
While asset forfeiture may have been developed with the best of intentions—at the time, “cocaine cowboys” were able to elude prosecution while flaunting fabulous wealth (developing the Miami skyline in the process)—American police have demonstrated time and again that this is a powerful tool rife with potential for abuse—and one they simply can’t be trusted with.
Americans lose more property to cops’ seizures than they do to burglars. In the last decade, almost $28 billion worth of cash and property has been seized in this way.
Among the more egregious examples of asset forfeiture abuse are cases filed in federal court against “One Gold Crucifix”; the nearly decade-long effort by Philadelphia authorities to confiscate the home of an elderly and ill grandmother, whose adult son had sold a few hundred dollars’ worth of cannabis to undercover police; and the seizure of a mother’s $6,000 pickup truck because her son, without her knowledge, had made some repairs to the vehicle using stolen parts.
According to a landmark inspector general’s report, almost half of all seizures had nothing to do with any crime or “broader law-enforcement effort.”
Let’s emphasize that point: Nearly 50 percent of the time, asset forfeiture is used by police to steal from Americans.
It is, along with disenfranchisement of Americans of color, quite possibly the biggest constitutional crisis ongoing in America today.
Along with transparency efforts like equipping police officers with body cameras and structural reforms such as Justice Department oversight of departments with atrocious civil-rights records, ending or drastically reducing the wanton use of asset-forfeiture reform is a key element of law-enforcement reform efforts—which is probably why Jeff Sessions loves the practice and wants to keep it alive.
In the latter years of the Obama administration, when the federal government was also changing drug-sentencing standards to end such blatantly racist practices, like the one that punished offenders with crack cocaine much more severely than criminals with powder cocaine, the Justice Department also put some limits on how much property police could confiscate without a warrant or a conviction.
As early as January, Trump was promising law-enforcement officers that these reasonable limits on forfeitures would be reversed.
Sessions’s directive issued yesterday at least partially fulfills that promise.
“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,” Sessions said on Wednesday. “We will continue to encourage civil-asset forfeiture whenever appropriate in order to hit organized crime in the wallet.”
What’s most remarkable about asset forfeiture is how it unites Americans, conservative, libertarian, and liberal: Nobody on that spectrum seems to like it—at all. Aside from police officers and their “Blue Lives Matter”-tweeting crew, nobody is willing to defend asset forfeiture. (Even some among that crew might find the practice distasteful.)
Indeed, everybody hates it, with uniquely measured arguments.
The conservative National Review calls asset forfeiture a “scam.” The American Civil Liberties Union calls it “policing for profit.”
Even Supreme Court Justice Clarence Thomas, the court’s possibly most conservative justice now that Antonin Scalia is dead (though his replacement, Neil Gorsuch, may yet prove to be more reactionary), believes it may be unconstitutional.
That’s the crux of the situation here: Jeff Sessions is so hellbent on allowing police officers to continue to violate Americans’ rights that he’s willing to go to the Supreme Court—and lose—rather than enact reform on his own.
“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,” said Sen. Mike Lee, a Utah Republican.
Sessions is either such a true believer that he honestly is convinced asset forfeiture is a good thing—or, more likely, he’s so friendless and desperate that he doesn’t care what he’s doing is wildly unpopular and almost certainly in violation of the document he’s sworn to protect and to uphold.
Either way, this is a sign that Sessions is now, like the rest of the Trump administration, backed into a corner. And a cornered animal is always the most dangerous.