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As Sessions Leaves DOJ, Questions Over Civil Asset Forfeiture

justice-2060093_1920-300x200Attorney General Jeff Sessions has resigned effective immediately. Sessions’ Chief of Staff, Matthew Whitaker, has been named as acting attorney general in his place. Sessions was a champion of civil asset forfeiture—he reinstated a federal forfeiture program that had been restricted by Eric Holder, his predecessor. Without Sessions at the Department of Justice (DOJ), there is uncertainty over the future of this program.

Sessions faced bipartisan opposition for his championing of civil asset forfeiture. “I’m amazed these people don’t get it. We had a reform in early 2001… relieved some of the concerns from our libertarians,” said Sessions in 2017. The Obama administration, he continued, “actually curtailed this program for the last several years, but we’re going to keep it out there. And as long as we can, we will be doing it.”

Civil asset forfeiture is a legal procedure where law enforcement can take possession of an individual’s property if that property is suspected of being involved in a crime. In most states, a criminal conviction is not required to seize property. As forfeiture cases are a civil matter, the burden of proof is often lower than it would be for a criminal case. The burden of proof also usually lies with innocent owners and not the prosecution.

The proceeds for civil asset forfeiture frequently go to law enforcement. Local police departments in some areas have grown to depend on the funds from asset forfeiture. This has led to criticism from across the political spectrum that law enforcement has an incentive to seize property. This is known as “policing for profit.”

The program Sessions revived is known as “equitable sharing.” This is where local or state police departments partner with federal law enforcement to litigate civil forfeiture cases. Eighty percent of the proceeds go directly to fund local law enforcement; the remaining 20 percent is taken by the federal government.

Local law enforcement will often use equitable sharing to circumvent state restrictions on civil asset forfeiture. For example, in Missouri, the proceeds from civil asset forfeiture must be used to fund public schools. If, however, a Missouri police department were to prosecute the same case through equitable sharing, they would keep 80 percent of the proceeds for themselves. “I love that program,” said Sessions in 2017.

In September 2017, the U.S. House of Representatives, in a rare moment of bipartisanship, passed amendments to curtail the federal use of civil asset forfeiture. Not one representative voted against these amendments. Despite this, none of these amendments found their way into that year’s spending bill.

According to Darpana Sheth of the libertarian Institute for Justice, “Congress’ failure to exercise its power over the purse to rein in even the most outrageous forfeiture practices is a disheartening setback in the fight to protect American’s private property rights.”

We do not yet know how Acting Attorney General Matthew Whitaker—or his full-time replacement—will approach equitable sharing. We do know, however, that Whitaker has a great deal of experience with civil asset forfeiture, having served on the DOJ’s Controlled Substances and Asset Forfeiture Subcommittee and handling federal civil asset forfeiture cases for the government.

Americans oppose the use of equitable sharing by an almost 3:1 margin.

Civil Asset Forfeiture Attorney

If your lawful property has been seized, then you should hire a lawyer. Contact us to set up a free initial consultation and work with one of Florida’s most experienced civil forfeiture defense attorneys.

Sources

2017-09-01 Sessions Welcomes Restoration of Asset Forfeiture – I Love That Program

2018-04-02 Congress Killed Efforts To Undo Sessions’s Civil Forfeiture Expansion, Despite Unanimous House Votes

2018-09-07 Jeff Sessions Resigns as Attorney General at Trump’s Request, Leaving Mueller Probe in New Hands