Civil Asset Forfeiture: Got Property? Not Anymore.
Attorney General Jeff Sessions sent chills down the spines of liberty-minded Americans on Wednesday, when he issued a directive on civil asset forfeiture that encourages government seizure of your property, even if you haven’t been proven guilty of, or even charged with a crime.
Sessions has championed no shortage of authoritarian-in-nature policies since assuming the role of Attorney General. With his revival of the War on Drugs, it was no surprise that the policy of civil asset forfeiture would soon follow.
Civil asset forfeiture is the process by which the government seizes an asset (e.g. car, truck, or a house) that they believe to be tied to illegal activities. It is most commonly applied in instances of drug trafficking or terrorism, but is not limited to.
The process begins with the government seizing the asset, then issuing the owner a notice of seizure. Should the owner want to attempt to recoup the asset, he or she must file a claim with the seizing agency. The government attorney will then review the claim and determine whether a civil complaint should be filed. The owner then must file a judicial claim to the asset and deny the allegations in the government’s complaint. Then, after all those steps have been followed (which can take six months or longer), the case, FINALLY, can be litigated in court.
Found innocent? No charges brought? You still might not get your property back. As David French in the National Review said, “It’s a gigantic law-enforcement scam.”
Civil asset forfeiture violates due process of law
The Fifth Amendment states, “No person shall be…deprived of life, liberty, or property, without due process of law.”
The asset is seized before the government has presented evidence against the owner. Moreover, because civil asset forfeiture involves a civil trial, a criminal conviction is unnecessary for the government’s decision to seize the property to be upheld. The burden of proof is much lower in civil trials than in criminal trials. Rather than using the “beyond a reasonable doubt” standard, the civil standard is to use a “preponderance of the evidence” (essentially ‘more likely than not’ guilty).
The fifth amendment is not the only constitutional amendment that civil asset forfeiture typically violates. In a 1996 dissenting opinion, Justice John Paul Stevens argued that civil asset forfeiture often violates the Eighth Amendment’s prohibition of excessive fines. That is because the government essentially has authority to seize any asset with any connection to an alleged crime. The case, United States v. Ursery, involved a Michigan man who allegedly grew marijuana near his house. Not in his house. Near it.
However, when the State discovered marijuana stems, seeds, and a grow light inside the house, it seized control of the house for its facilitation of the alleged crime. Stevens, the lone dissenter, cited Austin v. United States, which held that asset forfeiture could be considered an excessive fine. As “there is no evidence that the house had been purchased with the proceeds of unlawful activity, and the house itself was surely not contraband,” the seizure of the house was an excessive fine for the alleged crime.
Even if you reject the claims of unconstitutionality, policy need not be illegal to be foolish
American’s confidence in institutions is near an all-time low. There is no debating that the relationship between law enforcement and the community is tumultuous. Most importantly, 84% of Americans oppose civil asset forfeiture, according to a Cato Institute/YouGov survey. Only herpes, Nickelback, the BRCA, and Congress have approval ratings that low. Instead of focusing on desperately needed criminal justice reform, Sessions has decided to focus on one of the most unpopular policies in recent memory.
Elected leaders often assume they have a mandate to impose whatever sort of legislation they see fit. If members of Congress continue to propose legislation that the vast majority of Americans feel great apathy towards, eventually they will be voted out of office. Civil asset forfeiture is a deeply unpopular policy that infringes upon the inherent liberties that come with being an American and those outlined in the Constitution, and Republicans – specifically Jeff Sessions and the Trump Administration – would be wise to abandon it before it undermines their ability to represent the American people.
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