Civil Forfeiture Is Inherently Abusive

Statement Responding to DOJ’s Announced Policy Change Increasing Use of Civil Forfeiture

Today, Attorney General Jeff Sessions announced that the Department of Justice would repeal reforms intended to curb federal law enforcement agencies’ use of civil forfeiture. In response, Institute for Justice Senior Attorney and Director of its Nationwide Initiative to End Forfeiture Darpana Sheth issued the following statement:

Civil forfeiture is inherently abusive. No one should lose his or her property without being first convicted of a crime, let alone charged with one. The only safeguard to protect Americans from civil forfeiture is to eliminate its use altogether. The Department of Justice’s supposed safeguards amount to little more than window dressing of an otherwise outrageous abuse of power.

We have consistently warned that the modest reforms put in place in 2015 could be rolled back with the stroke of a pen—and that is precisely what Attorney General Sessions has done today. The DOJ’s directive, announced to a room full of law enforcement officials who stand to reap the profits of this new policy, shows the fundamental absurdity of a system of justice which prioritizes funding law enforcement over protecting constitutional rights or fighting crime.

As the Justice Department’s Inspector General recently reported, the Department does not collect data to measure how often seizures and forfeitures advance criminal investigations. And the inspector general’s review of 100 cash seizures conducted by the Drug Enforcement Administration found that the agency could verify that fewer than half advanced or were related to an ongoing investigation.

The Justice Department’s new forfeiture directive restores the ability of state and local law enforcement to reap 80 percent of forfeiture proceeds by using federal forfeiture laws to circumvent protections put in place by state legislatures.

The supposed “safeguards” implemented by this policy directive offer little or no substantive protection to property owners as they depend primarily on self-policing rather than judicial oversight. Most amount to nothing more than a pledge to be more careful. For example, under this new policy, the Justice Department will continue to seek forfeiture of homes where the owner is not implicated in illegal activity, with the only “safeguard” being that the Department officials should proceed with particular caution. That offers no actual protection for innocent homeowners.

Moreover, despite well-documented abusive seizures of more than $10,000 in cash, the directive only requires additional safeguards for adoptions of $10,000 or less, which can be circumvented with a simple thumbs up from a federal prosecutor. Only one of the four alternative “safeguards” for seizures of $10,000 or less involves any judicial involvement (seizures pursuant to a state warrant), but judicial oversight of warrants is limited and often perfunctory, because warrants are issued based on statements from law-enforcement officers and do not afford property owners any opportunity to contest the validity of the warrant.

The DOJ stands alone in dismissing the need for real reform of federal forfeiture laws.

  • 84 percent of Americans support reform;
  • 235 editorials have criticized civil forfeiture;
  • 24 states have substantially reformed their own forfeiture laws in the last three years;
  • Both the Republican and Democratic Party platforms condemn civil forfeiture and call for reform.

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