(Quin Hillyer, Liberty Headlines) Jeff Sessions arguably may be the most conservative U.S. Attorney General in history, but in a decision announced July 19 he put himself in opposition to a huge trend in the modern conservative movement.
Sessions’ new order expands the federal government’s use of “civil asset forfeiture,” which is the practice of seizing property held by those suspected of criminal activity. A staple of many law-enforcement jurisdictions for years, asset forfeiture is meant to help dry up sources of revenue and other support for those who transgress the law. And if the seized assets are not found to belong to particular victims of crime, enforcement agencies often keep the proceeds as part of the way to fund their own operations.
The new order will allow the feds to seize property collected not just by federal agents, but all assets seized by state and local officials if the alleged crime causing the seizure also violates federal law.
“Asset forfeiture is one of law enforcement’s most effective tools to reduce crime,” Sessions wrote, “and its use should be encouraged where appropriate.”
A host of law-enforcement agencies heartily endorsed Sessions’ directive – and conservatives, usually seen as avatars of “law and order,” usually would be expected to line up with law enforcement.
But for a couple of years now, conservatives also concerned with property rights – along with conservatives with libertarian beliefs against intrusive, over-powerful government – have led a movement to restrict, rather than expand, asset forfeiture. The Internet is full of compelling and well-documented stories of abuses of asset forfeiture in which even the property of uninvolved innocents, if momentarily in possession for whatever reason by those arrested for alleged crimes, is seized and then made almost impossible to recover.
Witness the case of the elderly couple whose home of 50 years was seized because their son was selling small amounts of marijuana, without their knowledge, from the front porch. Or the 81-year-old who had $8,400 in cash seized under the suspicion – without any proof – that it resulted from drug sales, and then was unable to recover the money because he was not informed of the deadline to fill out proper forms for its return.
Even more traditionalist-conservative, as opposed to libertarian, organizations have argued that forfeiture practices have gone too far – as did the flagship Heritage Foundation think tank with a 2015 booklet against the practice called “Arresting Your Property.”
In his order expanding the federal reach of seizure powers, Sessions did make sure to highlight a series of “safeguards” his order will implement in hopes of warding off abuses. For example:
[T]o better protect claimants, the Department will expedite the review of civil asset forfeiture cases. State and local law enforcement agencies requesting federal adoption must do so within 15 calendar days following the date of seizure. The adopting federal agency must then send notice to interested parties within 45 days of the date of seizure. This is twice as fast of a review as is required by statute. This streamlined process will ensure that people receive speedy resolutions of their cases, and that rightful owners will get their property back as soon as possible.
“In addition to these safeguards on federal adoptions, I am asking Department attorneys to proceed with an abundance of caution when handling all forfeitures involving vehicles and especially residences. I think that Department attorneys should think hard before they agree to forfeit these types of property, or waive any asset thresholds associated with them. Just like with cash seizures, if we operate this program in a careful and responsible way, something I believe the American people expect and deserve with a program such as this, the Department’s federal asset forfeiture program will be an effective tool, while at the same time protecting the rights of property owners.
Still, it was conservative U.S. Senators and organizations, more so than liberals, who rushed to condemn Sessions’ order.
For example, Utah’s Mike Lee blasted Sessions for going the wrong direction in the face of “increasing indications from the Supreme Court that this practice is constitutionally suspect.” Kentucky’s Rand Paul said that “I oppose the government overstepping its boundaries by assuming a suspect’s guilt and seizing their property before they even have their day in court.” Judiciary Committee Chairman Chuck Grassley has long been an advocate of more protections for property rights rather than expansion of forfeiture.
And Jason Pye, vice president of the powerful libertarian-conservative grassroots organization FreedomWorks, issued a scathing statement: “The Justice Department’s own Inspector General raised serious concerns about the forfeiture program in a report in March, saying it lacks proper oversight. By expanding government power to take property without appropriate due process, even when state laws don’t allow it, Sessions is signaling he answers to no one. FreedomWorks calls on Congress to rein in our attorney general and pass aggressive civil asset forfeiture reform now.”
Deputy Attorney General Rod Rosenstein disagreed.
“It’s not about taking assets from innocent people,” Rosenstein said. “It’s about taking assets that are the proceeds of […] criminal activity, primarily drug dealing.”
His reassurances, though, appeared unlikely to allay critics’ concerns any time soon.