WASHINGTON (CN) – Attorney General Jeff Sessions on Wednesday issued a new order allowing the federal law enforcement agencies to take control of property state and local law enforcement seize from suspected criminals, whether or not they are ever found guilty of a crime.
Sessions hinted at the move earlier this week in a speech to the National District Attorneys Association, and met with law enforcement officials on Wednesday to discuss the new policy.
The new directive is a reversal of a near-ban on the practice, known as federal adoptions, that former Attorney General Eric Holder put in place during the Obama administration.
In a speech at the meeting with law enforcement officials on Wednesday, Sessions said reviving the civil asset forfeiture practice kneecaps large criminal organizations and “takes the material support of the criminals and instead makes it the material support of law enforcement” by providing money for police departments to buy needed equipment.
“As any of these law enforcement partners will tell you and as President Trump knows well, civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains and prevent new crimes from being committed and it weakens the criminals and the cartels,” Sessions said. “Even more importantly, it helps return property to the victims of crime.”
Asset forfeiture allows police departments to seize from suspected criminals cash, cars or other property that they suspect is involved in a crime. Critics of the practice, which include liberals and conservatives alike, say it allows law enforcement agencies to pad their budgets because they can hold the seized property even if the suspect is never convicted of a crime.
Critics also say the federal adoption practice allows state law enforcement agencies to run around laws that state legislatures have put in place to curb the practice, most of which are tougher than the federal forfeiture laws that come into play when a federal agency comes on the scene. State or local agencies get 80 percent of whatever proceeds come from a forfeiture that the federal government adopts.
Sessions addressed some of these concerns in his speech and in the order itself, touting safeguards meant to check against the potential abuses of asset forfeiture that critics warn is too common.
Under the new policy, attorneys at the federal agency adopting the seized assets will have to review the seizures and the Justice Department will require local and state agencies to fill out a new form where they will have to “provide additional information” to establish the probable cause that led the agency to seize the property, according to the 3-page directive issued Wednesday.
Sessions also touted his work in the Senate on the topic. In 1999, Sessions worked with then-Sen. Joe Biden, current Senate Minority Leader Chuck Schumer and Sen. Dianne Feinstein, now the top Democrat on the Senate Judiciary Committee, on a bill that upped the burden on the government in civil forfeiture cases among other reforms.
Though their bill died in the Senate, the House version of the legislation passed and became law.
“When I was in the Senate, I worked with Senator Schumer to make modifications to the civil asset forfeiture program,” Sessions said in a speech. “We required probable cause for the seizure of property and we raised the burden on the government, who has the initial burden in all of these cases, to the same preponderance of the evidence standard used in all civil cases. In addition, if the government lost the case, then the government pays attorneys’ fees. I believe those were good reforms that strengthened the program.”
But civil rights groups on Wednesday said the protections in the new directive are weak at best, despite Sessions’ insistence otherwise. Dan Alban, an attorney at the Institute for Justice, noted that the only check put in place on the forfeiture of houses is a warning that the department “should proceed with particular caution.”
Even the safeguard that Alban considered the strongest, one that puts in place requirements for federal agencies to check off before they can adopt less than $10,000, can be circumvented as long as “the U.S. Attorney’s Office first concurs.”
Alban criticized most of the protections as “self-policing,” with the only judicial oversight coming with the requirements that law enforcement agencies receive a warrant before proceeding with forfeitures, Alban said.
“Almost all of them are basically just pledges to be more careful,” Alban said in an interview.
Even with Sessions’ directive turning back the near-ban on federal adoptions Holder put in place in 2015, Alban was optimistic that Congress could act to make the practice more difficult, just as many state legislatures have in recent years.
Rep. Darrell Issa, a California Republican who has signed onto the Due Process Act that would increase the burden of proof on the government in forfeiture cases and give more protections for people who have their property seized, said Sessions’ directive is a “disappointing development” that underscores the need for the bill he has supported.
Alban said there is fairly bipartisan agreement on the need to crack down on civil forfeitures and that Congress has the ability to step in and make changes.
“There is a lot of momentum behind this,” Alban said. “Because 84 percent of Americans oppose civil forfeiture and think reform is needed. And it’s hard to find 84 percent of Americans that agree on anything. So when you have that kind of level of agreement about the need for reform, of course you’re going to have politicians who want to do something about that.”