Atty. Gen. Jeff Sessions has expanded the authority of law enforcement to seize criminal suspects’ money and property, bucking a movement in Congress and many states to rein in a practice that critics said led to flagrant abuses and was unconstitutional.
The Justice Department announced Wednesday it was restoring so-called adoptive forfeitures, where local or state authorities can seize valuable assets from suspects under federal law, circumventing more restrictive state laws.
Asset forfeitures are controversial because law enforcement agencies often take possession of cars, homes, jewelry and cash from suspects implicated in drug deals or other crimes without first obtaining convictions or, in some cases, indictments.
Such practices have led to criticism that local and state law enforcement agencies have deliberately misused the law to seize property that could help fund their operations. Partly as a result, two dozen states have restricted asset forfeitures.
In 2015, then-Atty. Gen. Eric Holder drastically curtailed the practice amid growing concerns in Congress that police were improperly seizing valuable belongings from suspects without any convincing connection to crimes.
In the previous eight years, adoptive forfeitures — mostly by the Drug Enforcement Administration — had garnered about $880 million, according to a March report by the Justice Department’s Inspector General.
The report found that many of the forfeiture cases were not linked to provable crimes. It cited a case in South Florida that led to seizures of $49 million but not one criminal indictment.
Both liberal and conservative legal organizations have condemned forfeitures. In a rare bit of bipartisanship, Republicans and Democrats in Congress have joined forces to sponsor bills intended to curb the practice, although none has passed.
Sessions opposed some of those reform measures as a U.S. senator from Alabama. Since he was confirmed as attorney general, the nation’s highest law enforcement official, he has moved to reinstitute several aggressive drug war policies.
He has instructed prosecutors to file the most severe offenses against criminal suspects, for example, ending another Obama-era policy that tried to ease long mandatory sentences for nonviolent offenders.
At a news conference Wednesday, Deputy Attorney General Rod Rosenstein said the Justice Department would require more stringent oversight and training to help prevent abuses by police during asset forfeitures and make sure that such seizures meet constitutional standards.
“We heard loudly and clearly from local police agencies that they think this is a valuable tool,” Rosenstein said.
He said the new policy will not require criminal convictions before police can take possession of a suspect’s property. But, he added, “there has to be evidence of a crime.”
Under the new policy, local authorities must ask the Justice Department to intervene within 15 days, and demonstrate probable cause before seizing any suspected contraband.
Sessions said the new rules will help protect against abuses and allow people to contest the seizures.
“In the vast majority of cases, this is really not an issue,” Sessions told reporters. He said that 4 out of 5 forfeiture cases are uncontested.
“They’re not challenging [the seizures] because this was usually drug money, and they know it was drug money,” he said.
Some law enforcement officials attended the announcement and applauded the policy change. Seizing ill-gotten gains breaks the backs of criminal groups, they said, adding that the criminals depend on the confiscated funds to support their budgets.
“For eight years, we felt we didn’t have the support of this department, and we finally feel that we do,” said Ron Brooks, speaking for the National Narcotics Officers Association Coalition.
But Darpana Sheth, senior attorney for the Institute for Justice, a conservative legal group, said many forfeitures are uncontested simply because people don’t have the resources to fight the government.
“It’s not surprising that the only defenders of this program are the ones who stand to financially benefit from it,” she said of police and prosecutors.
Liberal groups also have condemned forfeitures. Kanya Bennett, legislative counsel for the American Civil Liberties Union, said the new order bucks widespread public opinion that seizing assets of people who have not been convicted is “unjust and un-American.”
Rep. Darrell Issa, R-California, who sponsored legislation this year to more tightly regulate asset forfeiture, called the new policy “a troubling decision for the due process protections afforded to us” under the Fourth Amendment of the Constitution.
“Criminals shouldn’t be able to keep the proceeds of their crime but innocent Americans shouldn’t lose their right to due process, or their private property rights, in order to make that happen,” Issa said in a statement.
Six members of the Senate urged Sessions in a May 31 letter to revise the asset forfeiture policies in light of increasing indications that the Supreme Court views the practice as unconstitutional.
“Instead of revising forfeiture practices in a manner to better protect Americans’ due process rights, the [Justice Department] seems determined to lose in court before it changes its policies for the better,” Sen. Mike Lee, R-Utah, one of the six, said in a statement Wednesday.
