September 28, 2017

For the past two years, civil forfeiture has been in retreat. Twenty-four states have reformed their laws. Thirteen states now require a criminal conviction to forfeit property. And a bipartisan coalition in Congress has called for federal reform.

Even federal prosecutors took modest steps to stop abuse, as former Attorney General Eric Holder announced a policy change in 2015 limiting civil forfeiture.

As regular readers of Liberty & Law are aware, IJ has pushed almost all of these developments.

But now the new attorney general, Jeff Sessions, is pushing the other way. He is enacting a different kind of change, rolling back protections for property owners.

U.S. Attorney General Jeff Sessions has overturned important reforms and IJ has vowed to fight back.

In July 2017, the attorney general announced that he was reversing the Holder-era reforms. The attorney general has said he supports civil forfeiture and wants to see more of it.

That is bad enough, but these federal policy changes also threaten to undermine state reforms.

No fight is won in a day, and the other side always fights back. But IJ’s determination and resilience have transformed an apparent setback into an even stronger push for reform.

The attorney general is clearing away restrictions on so-called equitable sharing, which allows state police to seize property and transfer it to federal prosecutors for forfeiture under federal law. This allows police in states with strong protections for property owners to circumvent reform.

Imagine, for instance, your property is seized in a state that requires a criminal conviction to forfeit property. Using equitable sharing, state police can disregard those protections and take your property without convicting you of anything.

Then state police get a kickback of up to 80 percent of the value of the property. In other words, the federal government pays state police to disregard state law.

Bad news. But IJ is fighting back, and proponents of civil forfeiture are once again playing defense.

Immediately following the attorney general’s announcement, IJ launched a multi-pronged counterattack.

Our communications team sprang into action, and IJ was seemingly everywhere—appearing on cable news, placing stories with print reporters and flooding the editorial pages. Coverage of the attorney general’s announcement was almost uniformly negative.

On the legislative front, IJ has provided guidance to help state legislators safeguard their reforms. IJ’s model legislation restricts state law enforcement from engaging in equitable sharing, thwarting efforts to undo state reforms. Several states adopted that aspect of the IJ model even before the attorney general’s announcement.

IJ has also been working in Congress to undo the attorney general’s announcement—and to use the public outrage generated by the announcement to push forward broader reform. Two reform bills are pending in Congress, and since the attorney general’s announcement more senators and representatives have stepped forward in support.

Meanwhile, IJ continues to push ahead in the courts, including by filing a new civil forfeiture lawsuit against the federal government (see article, page 4). With the U.S. Supreme Court signaling its interest in civil forfeiture in several recent opinions, the judicial branch seems poised to restrain this unconstitutional practice.

No fight is won in a day, and the other side always fights back. But IJ’s determination and resilience have transformed an apparent setback into an even stronger push for reform.

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